The Remix Artist’s Catch-22: A Proposal forCompulsory Licensing for Transformative,Sampling-Based Music

I. IntroductionAnd then in came Raekwon, and up went the confetti, and the security guys moved aside, as instructed, and the kids streamed onto the stage from both sides, and within sixty seconds there were a hundred of them up there, maybe more, every square inch jammed .... By the time the show reached its climax, around 1 a.m., [he] was standing on top of his table, high above the crowd, his long hair plastered to his sweat-soaked face, his arms in the air, one foot planted on either side of his laptop, which was issuing forth LiI Wayne's rap from "A Milli" over the anthemic coda to Journey's stadium-size power ballad "Faithfully." He was a remix rock star . . . .This is a description of a live concert of one of America's top remix music artists.2 The music it describes is novel and artistically fascinating, but it is also arguably illegal. The thousands of fans at shows like this are not interested in copyright law; nor are the musicians who create this music. But it affects both of them, imposing a strong presumption of illegality and, in some cases, preventing gripping new musical works from being created at all.The chilling effect of intellectual property law on musical creativity and the communicative ability of music is well documented.3 Nowhere is this more the case than with "sampling" - the process of using an existing sound recording within a new one.4 Over time, the use of sampling has become more and more creative, moving from the simple appropriation of a single beat to the layered use of several samples in collage-like recordings.5 But the musicians behind these new recordings cannot release their work and profit from it because of the restrictions of copyright law.6 This prohibition might make some sense if the copyright regime entirely failed to recognize the tradition of appropriation and allusion in music.7 But copyright does acknowledge these time-honored practices by allowing musicians to "cover" the songs of other musicians.8Contemporary law's treatment of sampling as automatic copyright infringement is not in line with the traditions of musical copyright and is keeping legitimate artists from earning a living through their music.9 Consider the example of sampling the Beatles: "[W]WIe the Beatles' tunes have been recorded by thousands of bands, their song catalog [of recordings] has been notoriously off-limits to hip-hop and dance-music producers' manipulations."10 The treatment of the Beatles catalogue demonstrates the arbitrary legal distinction between covering, which is always allowed, and sampling, which always requires permission." One DJ learned about this distinction the hard way when he made an entire album of Beatles remix and was sued by the Beatles' record label, EMI.12 One authorized, high-profile remix of Beatles recordings does exist: The 2006 album Love.13 This record, however, required extensive permissions and likely could not have been made by anyone other than its creator, the Beatles' original producer, George Martin.14 In fact, even Martin could not believe that his remix was approved, "considering [the] fastidious guardianship of the Beatles catalog."15 Remix reinterpretations of the Fab Four's recordings are off limits for all but Beatles insiders, yet any cover musician can use the Beatles compositions. There is no explanation for this distinction other than woefully outdated copyright laws."Catch-22" is Joseph Heller's well-known name for a situation in which one can make a decision, but either choice will have negative consequences. 16 One is thus knowingly victimized by a system but cannot escape from it. This Note will expose several catch-22 situations that have arisen in modern copyright law by exploring one of the most high-profile examples of outmoded copyright law - remix musical culture. The goal of this Note is to demonstrate the various lose-lose situations in which remix musicians find themselves as a result of an archaic copyright regime and to propose a way to remove them from the legal maze in which their creativity currently exists. …