Using as its departure point the controversy surrounding the release and dissemination of Danger Mouse's Grey Album, this article discusses the recent brand of activism that has emerged as a reaction to the expanding influence of intellectual property law. The limited edition Grey Album, in which Danger Mouse mixed the instrumentation from the Beatles' White Album with vocals from tapper Jay-Z's Black Album, came to the attention of EMI/Capitol, the owner of the Beatles' sound recordings, in early 2004. Danger Mouse received a cease and desist letter from this copyright holder immediately after it was released, but it wasn't until the company began sending cease and desist letters to fans who were trading and distributing the album on the Internet that EMI/ Capitol was positioned at the receiving end of a large, organized online protest. The Grey Album itself is also a useful object of study because it highlights the ways in which copyright law has not caught up with the century-old cultural practice that is collage. Placing this album in a historical context--from musique concrete to post-millennial mashups--helps to highlight the ways notions of the authorship and ownership have changed over the years, with regard to intellectual property.

Introduction

In early 2004, underground hip-hop artist Danger Mouse produced a pop-music Frankenstein he named the Grey Album. This mad musical scientist spent more than 100 hours chopping up instrumental fragments from the Beatles' White Album, adorning them with vocals from Jay-Z's recently released Black Album. Conceptually, it was a great idea, but it's also a pretty compelling record, or at least an interesting listen. "Every single kick, snare, and chord is taken from the original Beatles recording," Danger Mouse wrote on his website. He pressed a limited edition of 3,000 copies, but it spread like digital wildfire on file-sharing networks, and it received coverage and praise from the New Yorker, the New York Times, and Rolling Stone. As corporate goliaths tend to do, EMI soon began sending out cease-and-desist letters.

In response, the music activists at downhillbattle.org coordinated a major online protest--dubbed "Grey Tuesday"--where at least 170 websites risked a lawsuit by hosting the album. It was kind of a virtual sit-in. I was one of many who received a cease-and-desist letter from EMI after I posted the album on my website, Kembrew.com, and, along with a few others, I refused to back down from this intimidation. One website operator replied to EMI's legal threats by quoting the entirety of the Beatles' "Piggies," which goes, in part: "Have you seen the bigger piggies in their starched white shirts" and "In their eyes there's something lacking, what they need's a damn good whacking." He or she ended their email with "We do not negotiate with pigopolists." I simply ignored the letter and kept the album on my website.

Under the current copyright system, owners insist that it's illegal to sample without permission, even if one offers to pay royalties. However, it's perfectly okay for musicians to record their own versions of a song by registering the cover and paying the appropriate licensing fee. (You can record a Beatles song without asking, even if you butcher the cover, but the Beatles almost never allow sampled reinterpretations of their work.) This "compulsory right" to remake others' music has been in place since the Copyright Act of 1909. It is in this way--and many other ways--that copyright still has not caught up with a collage method that is a century old. The Grey Album was yet another example of a creative work that literally had no place in this world; it was stillborn, legally, even if it is very much alive, creatively.

I risked a lawsuit because I felt a responsibility to show that fair use exists in practice, not just in theory. For me, it would have been ethically wrong to act as a detached academic while others took the fall, because if anyone could make a fair use case, it's me. As a professor who regularly teaches undergraduate and graduate courses on copyright, popular music, and pop culture, I think it is important to make certain copyrighted materials available without worrying about getting sued. It was in the spirit of promoting conversation and debate about an illegal artwork (and a broken copyright regime) that I engaged in this act of copyright civil disobedience.

Anyway, it did not cause EMI economic harm, and Jay-Z tacitly allowed this to happen by releasing a cappella versions of his record. There's no way any Beatles fan would choose to download the Danger Mouse remix in lieu of purchasing a Beatles record, and the same is true of Jay-Z's fan base. In fact, this controversy likely sold a few CDs for both plundered artists. The Grey Album was banned because it does not fit in to an outdated copyright regime, which is why it was of interest to many journalists, law professors, media scholars, music fans, and others. I never did hear from EMI again and nor did the other online activists who heard from the Beatles' record company; and, by the end of the day, the album had been downloaded more than 1 million times, which would have made it a platinum record in an alternate universe.

Backspin, Background

One can understand the Grey Album as an exemplar of how popular culture and popular music have been fully transformed by the modernist collage aesthetic, particularly the strategies of musique concrete. Engineer and radio announcer Pierre Schaeffer, who coined that phrase, began experimenting with recorded noises captured on magnetic tape shortly after World War II. He had no conceptual pretenses and wasn't necessarily a devotee of experimentalist John Cage; rather, he refined this sound-collage technique quite simply because of the pleasure it gave him (Russcol). Many musicians and composers during the mid-1950s were attracted to musique concrete once tape-recording technology became widely available, and it soon turned into a fully fledged avant-garde movement.

John Cage, who had previously incorporated turntables and radios into his compositions, was compelled to experiment with tape. This resulted in a composition he crafted for magnetic tape called Imaginary Landscape No. 5, which called for the use of any 42 records to be "treated as sound sources, rather than being what they were" (Revill 43). Other Cage works that arranged captured sound fragments included Williams Mix and Fontana Mix, both of which used everyday sounds such as street noise, coughing, swallowing, cigarette smoking, and other ephemera (Kurt; Ewen). Experimental composer Karlheinz Stockhausen, while a student in Paris, was introduced to musique concrete during his studies with Schaeffer; Stockhausen claimed this had a great impact upon his later work as he went on to greater fame within the European art music world (Witherden; Ewen). A composer who predicted in 1917 some of the strategies employed by musique concrete producers was Edgard Varese, who in 1954 was finally able to use a tape recorder to create his electronic collage masterwork Deserts (Russcol).

In 1961, James Tenney, a young American musician and composer, created a piece titled Collage #1 (Blue Suede). This interesting work was audacious by today's legal standards because he cut up and reassembled portions of Elvis Presley recordings, including the King's rendition of Carl Perkins's rockabilly classic "Blue Suede Shoes." Tenney slowed it down, chopped it up, and manipulated its tempo (Polansky). Also, during the late 1950s and early 1960s, Beat novelist William Burroughs and collaborator Brion Gysin created their own "cutups" with tape (Lydenberg). The earliest example of "sampling" on the Billboard charts was Buchanan and Goodman's 1956 hit "The Flying Saucer." Bill Buchanan and Dickie Goodman composed this funny "break-in" record on a reel-to-reel magnetic tape recorder, creating a skit about an alien invasion--as told through then-current rock and roll hits. Imitating the radio broadcasts of War of the Worlds, the songs break in to the radio announcer's comments, creating a jarring, goofy collage of sound.