Music Business Journal: Mash-Ups and Fair Use
With the development of digital music in the mid-1990s, the act of sampling became very popular and is now a fundamental element for musical styles like rap and hip-hop. The use of samples to construct new songs is considered a derivative work and usually a license is required. Copyright owners have already successfully sued hip-hop artists that tried to use samples without these licenses.
Another sample-based derivative work is the mash-up; a type of composition that blends two or more pre-recorded sounds creating an entirely new musical composition. While mash-ups are also considered a derivative work, artists like Gregg Gillis—known as DJ Girl Talk—are trying to push the boundaries of the strictures of the law by trying to include these musical collages under the fair use concept.
Girl Talk's latest album, All Day, was released as a free download on November 15th and has more than 350 samples of different sound recordings in approximately seventy minutes of runtime. Obtaining all of the necessary licenses for each sound recording used would have been very costly and extremely time consuming. Gillis, having planned to release the album for free, decided to move forward without licensing a single track—not even the three-minute use of Black Sabbath's "War Pigs"—claiming that his creations fit the guidelines of fair use. However, to determine congruency with the fair use doctrine, it is necessary to understand the origins and basis of the fair use concept....