Frédéric Döhl (Freie Universität Berlin): @MusicHistoryLaw
A Question of Context and Aura. About Copyright Law’s Reaction to Digital Composing with Second Hand Sounds – with Special Regard to Mashup
Particularly due to widely acknowledged, theorized, and studied technological (pc, sam- plers, internet) and aesthetical (postmodernism, retromania) changes, the use of well- established practices of employing a musical reference has grown exponentially across the board from avant-garde music and jazz to all kinds of popular music genres during the last four decades. But has the massive quantitative change mutated in any respect to a qualitative change, too, bringing anything new to the wide and old field of musicalborrowing (Burkholder, 1994; Schneider, 2004) with regard to both the production pro- cedures and/or the reception and evaluation of these kinds of music?
At least German copyright law has – in opposition to US copyright law2 – recently recognized thisdevelopment in matters of sampling for its ability to create new from old, but stated immediately an intriguing exception of this newly opened up case of fair use: you are not allowed to sample if an »average producers« will be able to produce the sampled sound on his own. This is the classic objection against musical borrowing as an act of laziness and creative inability becoming copyright law.
This paper deals with mashup as a case example, a genre of popular music (McGranahan, 2010; Sinnreich, 2010) which is totally based on large-scale sampling. In referring to its classic work, the Grey Album (2004) – a mashup of Jay-Z’s Black Album and The Beatles’ White Album –, and its story, this paper not only strives to exemplify how the ability to draw upon specific sounds changed by digitalization (Metzer, 2003) is
fundamental to the aesthetic of mashup but to show how this ability indeed brought some qualitative changes (opposing Reynolds, 2011) towards not just performance quo- tation (Katz, 2010) but the creation of a virtual shared performance by art- ists/ensembles who in reality did not perform together, exemplifying how the men- tioned exception for fair use misunderstands how important the fact is for the experi- ence of such music based on sampling that the sounds you hear are actually produced by specific artists/ensembles and not by anybody, even if it would sound the same: the difference is a question of context and aura (Danto, 1964; Latour, 2011). With these arguments the current »average-producers«-jurisdiction will be explained and critically discussed.
Frédéric distinguishes between musical borrowing from a melodic/musical PoV and a sonic one (sampling and mashups). He discusses the importance of recontextualisation and the way in which a mashup is a different creative object because of the difference in its context. This, he argues, makes the producer ‘a new kind of artist’. New technologies have a tendency to replace old jobs. There is a tension between achieving musical congruence in the mashup work while maintaining (and being playful with) the ‘aura’ of the original recordings.
He now turns to his case study, a result, he tells us, of five separate court cases. The case in question ‘involves Kraftwerk’s 1977 song Metall auf Metall. In 1997, composer-producers Moses Pelham and Martin Haas sampled the track’s clanging beat for Nur Mir, a rap-rock track by the Frankfurt MC Sabrina Setlur.’ (Guardian article).
The case was not based on an infringement of the original work but on a sample from a derivative work. The court cases created a possibility that sampling could continue freely on the basis that the sampled material could have been ‘replayed’ by the producer using equipment available freely on the market, but the last two court decisions backed away from this. Frédéric discusses the idea that sampling is simply laziness – copying something because it is easier than creating it from scratch.
He cites The Grey Album and notes that it is not possible in most copyright regimes for such an object to exist legally (even though it is considered culturally important). Mashups shift the copyright debate from ‘how much is sampled’ to ‘what one is doing with the sample’. The courts seem to shy away from making full use of a flexible approach to copyright and similarity. Can we have maximum similarity and maximum transformativeness at the same time?