Legal Commentary

Girl Talk:

By David Post

As many of you have undoubtedly heard, the Pittsburgh based DJ and mashup artist ?Girl Talk? ? real name Gregg Gillis ? has released his latest album, ?All Day? available for free download at his website (www.illegal-art.net). [Be patient ? the site?s been overwhelmed with download requests] It?s damned good stuff ? maybe even great stuff, if you ask me. If you do have a listen, make sure to catch the last 4 or 5 minutes or so of the final track (?Every Day?) ? his use of Lennon?s ?Imagine? underneath UGK?s ?One Day? is truly inspired and very moving . . .

Lots of copyright issues here, of course ? the most interesting one, perhaps, being ?why hasn?t he been sued for infringement?? Under the Bridgeport Music case out of the 6th circuit a few years ago, it?s abundantly clear that all of the samples he?s using ? and there are hundreds and hundreds of them; the Wikipedia page for the album has all of his fans chiming in on where he?s getting his samples from, another nice example of collaborative production ? are infringements, and his ?fair use? defense, though plausible, is probably pretty weak as a matter of law.

Unfortunately,this is just the sort of creative activity that copyright law, in its current incarnation, makes almost impossible for anyone who (unlike Girl Talk) is unwilling to face potentially catastrophic liability risks. It would take you hundreds of hours of work and hundreds of thousands of dollars to clear the rights to this album even if you wanted to ? a pretty sorry state for a law that is supposed to be incentivizing, not prohibiting, creative expression to be in.

And just to square the circle, last year, when Larry Lessig gave a talk in Berlin about my ?Jefferson?s Moose? book, and what the ideas in there meant for the Internet, [available here] it was Girl Talk he pointed to as the new ?moose? for the new age ? the thing you point to and say: the old ways won?t work in this new place anymore.

Full post as published by The Volokh Conspiracy on November 19, 2010 (boomark / email).