Copyright Structure Needs Update

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Communications and Intellectual Property policy briefing

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I love listening to music. You won’t find me too far from my iPod when I’m commuting between my home in Pittsburgh and work here in Washington, D.C. When I was growing up, my friends and I listened to the radio constantly — we only had AM at the time — and there were a lot of great stations that played music we loved.

So much has changed since then. In the decade since Congress passed the Telecommunications Act of 1996 and the Digital Millennium Copyright Act of 1998, we’ve seen monumental innovation in music and the technology that plays it.

There’s not just free broadcast radio anymore, there’s subscription satellite radio, internet radio like webcasting, music downloads from sites like iTunes or eMusic.com, and wireless phones. Some are more of a competitor to radio than others — try listening to a live webcast in your car, for example.

But the innovation hasn’t just changed how or where we listen to music or how it’s distributed. It’s also fundamentally changed the way music is created. These changes will have a lasting impact on the future of technology and creativity.

Back when I was younger, the most impressive technology available to musicians was Peter Frampton’s talk box in “Do You Feel Like We Do.” But today, musicians are able to create successful albums on equipment easy and affordable enough to use in their homes. Powerful software many artists use today is included with some new computers. The same professional software that lets top 40 artists warble through songs and still come out sounding all right is now accessible enough to let anyone sound like they have perfect pitch.

Technology has allowed lots of people to create new forms of music that don’t fit neatly into our current copyright legal structure. One of the genres that has exploded in popularity involves mashups.

I first heard about mashups when I learned about a constituent of mine who spins under the name Girl Talk. At the time, Girl Talk was a biomedical engineer by day in Pittsburgh who made music at night. His last record, Night Ripper, made the top of 2006 lists from Rolling Stone, Pitchfork and Spin Magazine, among others. He’s become so successful that he’s quit his day job and now travels the world drawing sold-out crowds for his concerts — even performing at festivals with well-known artists like the Police and the Beastie Boys.

Girl Talk’s music is different from what I grew up with because he mixes rap lyrics on top of beats that he creates using snippets of existing songs. Sometimes listeners can recognize these snippets. But sometimes they’re so short and so altered that they’re beyond recognition — and they’re mixed together in such a way that you have no idea how someone thought they’d sound good together. But they do, and the music form works.

The Chicago Tribune wrote that Girl Talk’s music is “based on the notion that some sampling of copyrighted material, especially when manipulated and re-contextualized into new art, is legit and deserves to be heard.” As he explained to me recently, hip-hop artists and rappers often release instrumental versions of their songs, acknowledging that the beats can and should be ripped up, altered, edited and reused for the listener’s own creations.

Newsweek said Girl Talk’s not a Pittsburgh pirate. I think Newsweek’s right. A lot of what he does falls under the fair-use doctrine. Girl Talk’s use of music is transformative. Furthermore, no one can reasonably think the five seconds of a song he might use takes sales away from those artists who produced the songs that have been sampled.

But Girl Talk told me that he’d love to find a way to compensate the artists who created the songs he significantly used to make Night Ripper. Unfortunately, our current copyright regime makes doing that difficult if not impossible. At the rates that some record companies charge for samples, and because he uses so many for such a short period of time, that would cost him so much he’d have to charge consumers hundreds of dollars for the CD.

I’ve always said the Internet is the First Amendment come alive. It allows anyone to speak to anyone willing to listen. I’m excited to see music companies and online music retailers such as Amazon.com, iTunes, eMusic.com and Yahoo selling songs without the digital locks that prevented consumers from using the music they paid for when and how they’d like. Removing those digital locks means consumers can buy songs from the retailer of their choice, play them on the device of their choice and maybe even experiment with creating their own mashups. The explosion of innovation and creativity that changes like this will generate can benefit all who make and listen to music. I suspect that, in the long run, it makes more sense for record companies and retailers to embrace change rather than fight it.

I don’t think Congress is ready to address mashups in legislation yet. But when Girl Talk performs live at a concert hall, festival or a dance club, his performance is unquestionably legal because the venue compensates the artists and songwriters for their work through organizations like BMI or ASCAP. If the issues of copyright and proper compensation can be solved there, maybe we need to consider that model for works like Girl Talk’s — which aren’t based on sampling from one song, but from hundreds.

Rep. Mike Doyle (D-Pa.) is a member of the Energy and Commerce Committee.