Will DJ Danger Mouse Become the Che Guevara of Fair Use in the Digital Sampling Age?

Promotional artwork for The Grey Album by Justin Hampton. This was not used for the actual cover, but appeared on the Danger Mouse website in 2004. [Source: Wikipedia] Downloads are still available at Grey Tuesday.

On the Media producer Rick Karr put together an excellent one-hour special on The Future of Music, which surveys how new technologies are shaking up the music industry via digital downloads, remix, crowd-sourced ratings, and new business models. One segment, They Say That I Stole This, explores digital sampling and fair use:

Twenty years ago a series of lawsuits criminalized the hip-hop sampling of artists like Hank Shocklee and Public Enemy. And yet, two decades later, artists like Girl Talk have found success breaking those same sampling laws. OTM producer Jamie York talks to Girl Talk, Shocklee and Duke Law professor James Boyle about two decades of sampling – on both sides of the law.

OTM’s Jamie York explains the significance of DJ Danger Mouse:

Twenty years after first being deemed illegal, hip-hop sampling thrives underground. Fueled by digital technology and the Internet, there have been a few notable successes among this latest generation, Gregg Gillis, who you heard at the start of this piece, and especially 2004’s DJ Danger Mouse, who created what he called The Grey Album, a mix of Jay-Z’s Black Album and the Beatles’ White Album.

The Grey Album made Danger Mouse a star. Never commercially released, it leaked far and wide, making a number of year-end top 10 lists and offering major labels an object lesson in how not to stop samplers.

Why haven’t Greg Gillis and DJ Danger Mouse been sued by the music industry?  James Boyle says:

There is the story that the labels learned from DJ Danger Mouse and don’t want to risk creating the Che Guevara of the digital sampling age, the lost hero to which all of us will offer reverence and thus make him even more popular.

Another story is, they’re going, hmm, this is really interesting. Let’s let him run a bit, and when we finally see how things are playing out then we’ll figure out a way of getting a revenue stream out of this. A third story is they realize it’s actually fair use and they don’t want a bad precedent brought against them. And then a fourth one is that they are gibbering in terror and are so scared by this new phenomena, they’re incapable of rational action of any kind and so are caught in a kind of fugue state, as the digital music scene develops.

Follow James Boyle on Twitter @thepublicdomain.

x