Feed the Animals: Fair Use or Illegal Art?

Illegal Art is the appropriately named label responsible for Girl Talk's Feed the Animals, as well as Greg Gillis's previous three releases under that moniker. The label has a history of challenging the copyright police - dating back to their first release, Deconstructing Beck. The label's founder, Philo T. Farnsworth, has described his stance on copyright law as such:

I should clarify that we are and we aren't anti-copyright. We're against copyright law when it impedes an artist's ability to interact with pre-existing recordings. We're not against copyright protecting artists from someone copying their material and selling it without compensating them.

One of the initial questions proposed by Feed the Animals and other Girl Talk releases propose is - at what point does sampling end, and a new creation with a new "songwriter" begin?

Girl Talk has yet to be challenged by any of the major record companies from whom his tracks contain snippets of numerous recordings. In the instance of legal action, Illegal Art is prepared with a "fair use" defense - a law in place to protect those using copyrighted works for purposes of "criticism, comment, news reporting, teaching, scholarship, and research." But the US Copyright Office states that:

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

I would contend that - if challenged - Girl Talk is one of many artists victim of a copyright system that infringes on the creative process. "We have a massive system to regulate creativity," says Lawrence Lessig, a Stanford legal professor, founding board member of the Creative Commons, and author of Free Culture. He continues:

A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying.

(You can watch Lessig's speech on, "How creativity is being strangled by the law" at Ted.com).

Whether or not this claim of fair use will be tested by any major record company is unknown at this point. With songs containing tens of samples there is undoubtedly a new authorship that occurs within a Girl Talk track. At the same time, enjoyment of a Girl Talk track requires at least some knowledge of the sampled songs. Unlike the work of, say, DJ Shadow, Feed the Animals is as much about the original songs as it is about the new one. Since there is no clear cut definition of what makes a work fair use, we can simply look at some of the criteria:

Criticism: Were Girl Talk arguing that he was making political and social critique with his mixes, he may be able to claim fair use. But Gillis has stated himself that that is not the intention. ("The music is in no way politically based - I'm not trying to make a point about sampling," he told Pitchfork in 2006. "It may bring up issues but I'm not trying to push it on anyone.")

Profit: Another issue that arises during fair use claims is whether the artist-in-question is profiting. Timothy Gabriele poses an interesting question in his column for PopMatters, regarding the "name your price" aspect:

The problem with selling material with uncleared samples seems to be an issue over ownership of the sounds themselves. Would the same rules apply if said sampling artist were to only accept “donations” for their art? Consumers are not being asked to give money out for the purchase of Feed the Animals. They’re being ask to donate to a musician and his label for having made Feed the Animals, which they will gladly give you for free. In this context, Feed the Animals is about as illegal as any mashup some kid in his living room designed for his blog.

Problem is, that "kid" would probably still receive a cease-and-desist letter were enough people to download his mash-up. Furthermore, Girl Talk is profiting - he profits from those like myself who paid $13 to also receive a physical CD, and he profits from the exposure that will lead to ticket sales.

Girl Talk's intention is to be considered a stand-alone artist - "People can judge me on whatever level they think but I've always tried to make my own songs. They're blatantly sample based but I tried to make them so that you'd listen and think, 'Oh, that's that Girl Talk song,' as opposed to just a DJ mix." Feed the Animals - probably the single most important release this year - raises a number of questions. Should Girl Talk be allowed to continue creating and selling mixes copyright free? Should he qualify for fair use? Thoughts?

We will continue to explore this album and all of its dimensions for the entire week.