Excellent stuff, Rob. One mild note of disagreement is that Girl Talk’s music might not be as much of a lawsuit waiting to happen as it might seem – Fair Use guidelines, while not legal statute, can pretty reasonably be seen as protecting his sampling, especially as regards, “the effect of the use upon the potential market for or value of the copyrighted work” and the “transformational use” test of Fair Use.

He’s also added some very interesting and nuanced language about copyright and Fair Use to the download page:

“Feed the Animals by Girl Talk is licensed under a Creative Commons Attribution-Noncommercial license. The CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes. Also, the CC license does not grant rights to non-transformative use of the source material Girl Talk used to make the album.”

And – really, still digging on the album itself pretty hard.

I downloaded ‘Feed the Animals’ (listening as I write this). Think it’s excellent, but I didn’t pay a cent for it. Now that I’ve listened to it, I will go back, download it again and pay for it (probably $5-10). I’m sure I’m in the minority, so this wouldn’t work. but I would be totally open to that form of music purchase: Download an album, listen to it, and then decide how much you want to pay.

Also, from a legal standpoint, could Girl Talk release an album of original recordings, say 1 minute of him strumming a guitar, and sell that, throwing in the Feed the Animals for free? Would that allow him to say he wasn’t profiting from the work of others?

Rob,
You’re definitely pretty much on point as to why they’d sue him, and that’s the reason that so many artists have shied away from leaning too heavily on Fair Use: it’s a legal defense and even if you’re 99% sure it’ll work, it still requires going to court to use it. And artists, generally (esp. indies) don’t have that kind of money, as you note. But Girl Talk has also reached a point where now there would be substantial pro bono legal resources deployed on his behalf to fight any suit as a test case for Fair Use.

As to the last point, I think it’s really much bigger than a side note. I was actually thinking about this on the way to work this morning (listening to Girl Talk) – when in previous cases rights-holders have successfully sued artists for use of samples, it’s generally been the case that there’s one very identifiable track being sampled. So, transformative use or not, it can be easy for a judge to say that it’s infringement – it’s straightforwardly one song being used as a big part of another. With Girl Talk, however, because the whole of the work is hundreds of samples – some easily identifiable, some not – it becomes much more difficult for any given rights-holder to make an argument that their four-second sample is central to the work, deserves X% of the revenue derived, etc. Also – and this is not a small thing – short of a massive class-action lawsuit involving substantial agreement and coordination from the rights-holders for a large portion of the sampled works (the upfront cost of which prosecuting would be enormous, simply the lawyer-hours getting everyone on the same page [which might not work]), the optics of perhaps rights-holders from half-a-dozen of the hundreds of sampled works saying their works are being infringed upon, would be terrible. Girl Talk could, e.g., simply remove those samples, swap in different ones, and in so doing show that it’s actually his transformation of the works that’s of value, not the works in themselves.

You’re right that it’d be a statement case, but given the investment both financially and in terms of risking a hostile precedent (i.e., a substantial defense of Fair Use for mash-ups), I would be surprised to see a suit or suits.

I personally would never offer a way for people to pay for my album if I was Girl Talk. Its a big risk. But whatever, we will see where this goes. He’s got Doyle on his side. It could count for something. Anwyays, screw cockyrights. Its time to evolve. I deceided to make Girl Talk tee shirts. He doesnt even know I did it. And do you think he would care if I did? No. Check em out over here:

http://www.zazzle.com/noosic

So many fans and no tees! Now they have em.

Peace
-IASIIS

New Girl Talk

http://www.anthemmagazine.com/story/808

I just wanted to reply because if any one of the artists girl talk samples in “feed the animals” chose to bring a lawsuit for making an unauthorized derivative work out of their music, they could probably recover damages. It is true that fair use is a defense in suits where an author has taken something from another copyrighted source and in the process has either transformed it, parodied it, or in the older cases, “made a burlesque out of it”. However, sound recordings are treated differently than other creative works of authorship, and because of the ease of sampling, no matter how much or how little the sampler takes, they either get a license to use the sample, or it’s illegal-it’s what lawyers call a de minimus rule. Now, any chunk of a sound recording that appears in a song is illegal.

This may seem in contravention to the whole idea of fair use, but fair use protects those authors who take a preexisting copyrighted work and transform it in a way so that they are “adding” to the preexisting work. It’s in the statute, and it’s in the caselaw. Now, why hasn’t Girl Talk been sued you say? Well, think about the Napster cases, and the Grokster case, and think of what a PR nightmare that must’ve been for labels, and think what would happen if the big powerful labels ganged up and came down on Mr. Gillis…That’s probably why he hasn’t been sued.