The Grey Zone 

The debate over sampling, collaging and dangerous mice

The music industry is in the middle of its biggest identity crisis ever. Forget Napster, obscenity or movie stars who think they can start bands—musical "sampling," and its accompanying disputes over copyright infringement and the creative plague known as "intellectual property" are the art genre's crises du jour, and by all accounts will be for years to come. While these debates and accompanying lawsuits are nothing new—indeed, they have been a given in hip hop since its embryonic 1970s years—the new phenomena of unregulated Web sites and the much maligned file sharing have placed more kindling on the fire than ever before. In the middle of that kindling is the immensely noisy log known as The Grey Album.

The album was conceived of and concocted by a then unknown Los Angeles DJ known as Danger Mouse in late 2003. He mixed two of his favorite albums—The Beatles' self-titled double-LP known as The White Album, and rapper Jay-Z's The Black Album into a schizophrenic collage labeled The Grey Album. The mixture, an ambitious if inconsistent deconstruction of both artists from which it drew, was distributed only to Danger Mouse's friends and peers and was never meant for commercial distribution. "I told myself, 'Never will this come out ... Must still do ... Must still do,'" Danger Mouse recalled in a recent interview for The New Yorker.

But come out it did. Immense feature stories on National Public Radio and in The New York Times, as well as positive reviews in Rolling Stone and The Boston Globe provided all the marketing that Danger Mouse couldn't, and within weeks The Beatles' label EMI began mailing "cease and desist" letters to everyone from the DJ himself to any Web sites and stores that sold or gave away copies of The Grey Album.

The imbroglio revolves largely around the doctrine of "Fair Use," defined in title 17 of the United States Copyright Code. For new usage of copyrighted material, be it literary, musical or video, to be considered "fair" four factors are considered: 1. "The purpose or character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;" 2. "The nature of the copyrighted work;" 3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole;" and 4. "The effect of the use upon the potential market for or value of the copyrighted material."

By most of these admittedly abstract standards, The Grey Album should be quite legal. Not only was it not created for monetary gain, but it competes with neither of its parent albums, and its "nature" is an artistic reinterpretation, rather than a mere bootleg or repetition of the White and Black albums. The unique hang-up thus far is the third standard. While most DJs have historically sampled snippets of other artist's work to be interspersed with their own, Danger Mouse used only sounds from The White Album in the creation of his opus's background. For this reason, and because no permission was asked or received by Danger Mouse in the album's creation, the label has shown little restraint in legally threatening dozens of artists and Web site owners.

Whether EMI has any legal right to object is questionable, for federal copyright laws do not apply to any albums released before 1972 and The White Album is from 1968. However, such a concern has halted neither EMI nor its protestors, to the point that on February 24 over 300 independent Web sites joined together and offered The Grey Album for free download. The event, labeled "Grey Tuesday," has subsequently made The Grey Album the most heard "underground" album ever, with well over one million downloads. Since Grey Tuesday, according to music activism site DownhillBattle.org, the album has been downloaded more than albums by mainstream artists like Outkast and Norah Jones, and the debate over copyright infringement between EMI and those many Web sites has reached a fever pitch.

Danger Mouse himself has been humble and self-effacing throughout this escalation, patently avoiding any roles of leader or cyber-martyr that could easily be heaped upon his shoulders by activists. He was quoted, in a press release published the day before Grey Tuesday, as saying the attention is nothing more than "flattering" and The Grey Album was merely an "artistic expression" born solely out of his "love" of Jay-Z and The Beatles. So devoted is he that in interviews with The New Yorker and MTV, Danger Mouse actually claimed that if Jay-Z and the surviving Beatle members didn't like the album, he would try to destroy every copy. Likewise, when EMI ordered the DJ to cease and desist, he did—but by then, The Grey Album had gone far beyond his control.

Likewise, the debate over Danger Mouse has been picked up by other artists who have felt the legal manacles of mainstream labels. Most notably the underground pastiche-rock band Negativland has whole-heartedly re-embraced this suddenly mainstream debate with an eloquence most polemical Web sites cannot match. The group, a highly satirical electronic outfit who relied on sampling and tape loop-tricks throughout a series of controversial releases in the 1980s, was sued for copyright infringement in 1991 by U2 and their label Island Records for sampling a Joshua Tree song on the appropriately titled single U2. Subsequently Negativland has co-written a book, Fair Use, as well as several timely recent essays accessible through their Web site, www.negativland.com.

"The commercial entrepreneurs who now own and operate mass culture are apparently intent on obliterating all distinctions between the needs of art and the needs of commerce," the authors declare in "Changing Copyright." "Their knee-jerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work ... Here in the land of the free, as well as everywhere else, it is basic to human nature to copy for our own creative purposes—in fact, it's how we got to this level of civilization. This ageless aspect of human creativity is nothing but desirable and need not be criminalized when the motive is to create work."

Where this debate will go is unclear. Perhaps The Grey Album will prove to be a watershed piece and enter the pantheon of visionary art alongside work by Duchamp and Warhol, or perhaps it will be sued into oblivion like Negativland and forgotten until the beast of copyright infringement awakens again. The Web sites that have made use of The Grey Album both before and since Grey Tuesday will undoubtedly keep the album in circulation in coming months, but only the powerfully political ones like IllegalArt.com, DownhillBattle.org and the spectacular BannedMusic.org (just launched on March 24) will ultimately factor into the legal outcome. This last site, besides offering The Grey Album in a free, safe download, also contains the revelatory download Stay Free's Illegal Art Compilation CD. This stunning piece of civil disobedience collects 18 of the most prominent illegal and banned tracks ever produced, from Buchanan and Goodman's 1956 pop-collage "The Flying Saucer" to Negativland's "U2" to songs by Public Enemy, Beastie Boys, Biz Markie, De La Soul, The Verve and Elastica. "U2" is easily the personal highpoint for me, as it captures both the hilarity and harmlessness of Negativland's sarcastic vision. Buy, borrow or highjack a DSL line today to get a copy of this musical triumph, because BannedMusic.org, like The Grey Album, is just brilliant enough to be doomed.

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