Grey is the new Black?

May 5, 2006

This issues raise by this week’s readings, M. Rimmer’s “The Grey Album: Copyright Law and Digital Sampling” are indeed reflective of its title – grey. The example of DJ Danger Mouse mashing Jay-Z’s Black Album and Beatles’ White Album into "Grey Album" is aptly chosen, for there are literal and figurative dimensions to this issue. The literal part is of course our understanding of how colors work. The figurative part has to do with the confusing copyright and ethical issues surrounding the Grey Album.

I’m no legal expert but I think this is how the legal system works: Historically, a court ruling on a new issue sets a precedent and acts as a guideline for future legal cases. But with copyright issues concerning new media technologies, I’m not sure if that’s applicable anymore.

Firstly, the subjective nature of each case poses a big problem. The De Minimis rule allows artists to sample small amounts from earlier work to produce new creations, but the application of this rule is in itself subjective.  For example, if appropriating 3 notes from a 3 minute music composition constitute an infringement, how about 3 notes from a 13 minute piece? There is no agreeable formula to calculate the degree of appropriation. With music, the content is itself intangible, and the visual representation in waveform charts cannot be relied upon for judgment.

Secondly, technological and cultural innovations of new media technologies are fast changing and the online participatory cultures are constantly pushing the boundaries of creativity. For example, from personal websites to Blogs, podcasts, Vlogs and so on. Similarly, MMOG became a tool for the machinima movement. Who knows what is to come next? The market and governmental institutions have yet to set legal and ethical standards with the current trends, and this continuous shifting trend does not make it any easier.

The many other court cases cited in the article gave different verdicts, and doesn’t really clear up the air on the copyright issues involving digital sampling. But perhaps, that’s what it is meant to be – grey. Technology per se is a science, but not its usage. Social dimensions come into the picture, creating art out of science, art out of other art. In the past, artists had appropriated, even blatantly copied other artists’ creations. I think copying itself is an art form, and can sometimes bring the original form to another level. Perhaps the Grey Album has brought the Black and the White albums to the attention of new audiences.

The judiciary system is not the only way to solve this dilemma. Big companies may win lawsuits, but lose goodwill on the grassroots level in the process. A good example is the "Grey Tuesday" protest and the civil disobedience movement. Even though the record label EMI won and Danger Mouse had to cease distribution of Grey Album, many other sites carry it for free download. Ironically, Grey Tuesday and the media attention surrounding it – including coverage by New York Times, MTV News etc – gave instant fame to the Grey Album and Danger Mouse. It was reported that more than a million digital tracks were downloaded on February 24, 2004, Grey Tuesday. Though Danger Mouse lost the legal case, he gained so much more in other aspects.

From Rimmer's article, I agree with Jessica Litman’s stand on “recast copyright as an exclusive right of commercial exploitation.” I think this trend of appropriating will only grow more popular globally, lawsuits or otherwise. Here’s my two cents worth of suggestion to both parties “if you can’t beat them, join them!” Big companies can offer their marketing expertise and collaborate with the “mashers” to be part of the action. Share and grow the pie, instead of fighting for the same slice. I know this “brilliant” suggestion is ideological and there are many more issues entrenched, but the point is to work towards the direction of a win-win situation and hope that we can all live happily ever after…


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