by Jacob Goldstein
TAPE: Opening five seconds of Grey Album play, then fade under narr.
NARR: For Beatles' fans, the Grey Album opens with a familiar guitar riff from the song Long, Long, Long. And then Jay-Z starts rapping.
TAPE: Comes up, Jay-Z starts rapping. Then fades under narr., then out.
NARR: DJ Dangermouse's real name is Brian Moore. Last month, the Beatles' record label ordered Moore to stop distributing the Grey Album. A coalition of groups that believe in limiting intellectual property rights responded with Grey Tuesday -- a one-day event that led to more than 100,000 copies of the album being downloaded from the Internet.
Jason Schultz is a staff attorney at the Electronic Frontier Foundation, a group that advised the organizers of Grey Tuesday. He says hip-hop has long existed in two worlds. One is the world of major record labels. The labels have the money and the will to ensure that every sample on every album is licensed.
TAPE: SCHULTZ: Then you have the underground world, the world where people like Dangermouse until recently lived where people could make unauthorized remixes and stay below the radar. But you now have the Internet and the Internet basically broke DJ Dangermouse.
NARR: Schultz says the major labels have long ignored the underground world. But by making it easy for small artists to find a large following, the Internet will continue to blur the boundary between the underground and the major labels, setting the stage for more legal conflicts like the one over the Grey Album.
The question of whether unauthorized sampling is legal turns on an element of copyright law known as the fair use doctrine. Whether a particular instance of sampling is fair use depends on several factors. One is how much of the original work is incorporated into the new work. Another is whether the new work is transformative. That is, whether the sample is being used in a work that is new and different from the original. A third factor is how the new work is distributed. Jane Ginsburg is a professor of intellectual property law at Columbia University. She says Internet distribution can affect whether an unauthorized sample is legal under the fair use doctrine.
TAPE: GINSBURG: There's a lot of sampling and cutting and pasting and mixing and matching that people do in their own private creative space. Noboby's going to go after that so long as the circulation remains limited. Most people would say that if you make a copy to give to a friend, that's fair use. But as your friends start numbering in the millions that becomes a little more problematic.
NARR: One of the few stores where physical copies of the Grey Album were available is Fat Beats, a West Village record store that caters to the underground hip-hop community.
TAPE: AMBIENCE - FAT BEATS - low, under narr:
NARR: Producers and small-time distributors come to the store every day to drop off albums full of unauthorized samples.
TAPE: AMBIENCE COMES UP: I just wanted to find out if I could leave some more of Sergio's newest CDs. FADE UNDER.
NARR: Bryce Seefieldt works days as the store's buyer and moonlights as a DJ and producer. He's never paid for any of the samples he's used on albums.
TAPE: SEEFIELDT: I could only hope to reach notoriety to the level where if I sample something they would come and chase me down for it cause any projects I've dealt with to this point, you know a lot of them sample bass and whatnot. nobody's sought out our royalties our what we've done. I guess weve gotta make a little more noise and people will pay attention like "oh, he sampled our stuff."
NARR: With bit of luck and a little help from the Internet, Seefieldt might soon have record company lawyers sending angry letters to him. Jacob Goldstein, Columbia Radio News.