The Day the (Digital) Music Died: Bridgeport, Sampling Infringement, and a Proposed Middle Ground

I. INTRODUCTION In 2004, one record set the music world abuzz: The Grey Album by DJ Danger Mouse.1 Aldiough it was released without a record label and sold only 3000 copies,2 music insiders, critics, and fans responded in large numbers to Danger Mouse's revolutionary music.3 Instead of discussions on its potential for widespread sale or large concert revenue, music insiders focused on the content: remixed samples from two of the most popular and ambitious albums of the last fifty years of American music. Danger Mouse's record laid a cappella vocals from Jay-Z's The Black Album on top of instrumental samples taken from the Beatles' eponymous record commonly referred to as The White Album.4 Naturally, as a mix of black and white, Danger Mouse's record is entitled The Grey Album. Using commercially available software that sells for less than $400, 5 Danger Mouse scoured all thirty tracks on The White Album, deconstructing each song to find "every strike of a drum or cymbal when other instruments or voices were not in the mix."6 Danger Mouse then repeated the process for every piano,7 guitar, or bass line and began to pair the Beatles' instrumentation with Jay-Z's lyrics.8 Despite the obvious play-on-words connection between the Black and White albums, The Grey Album was first conceived when Jay- Z released an a cappella version of his record to facilitate these kinds of projects. Despite Roc-A-Fella Records' (the record company, owned by Jay-Z, that released The Black Album) traditional policy of not releasing a cappella albums, Jay-Z's engineer, Young Guru, explained that Jay-Z released the vocals-only tracks so that producers "could 'remix the hell out of it.'"9 After two weeks of nonstop work, Danger Mouse completed a record that seamlessly blended two generations of revolutionary music.10 Although originally conceived as a personal project with no real commercial aspirations, Danger Mouse produced a modest run of 3000 copies, which were sold dirough small, local record stores.11 However, news of the record quickly spread as it received favorable reviews in some of the nation's largest newspapers and music magazines.12 Radier than just adding rap lyrics to 1960's pop, Danger Mouse earned critical acclaim for matching the tone of JayZ's words with beats culled from the Beatles' album. To do so, each of the songs on The Grey Album contains as many as twenty-six layers of samples, most of them altered to match the tempo and tenor of the contemporary hip-hop lyrics, making the record sound as though Jay-Z recruited the Beades as his backing band.13 Despite its critical acclaim, The Grey Album faced a cold response from EMI, the record company that owns the rights to the Beades' sound recording masters.14 Upon receiving notice of the potential copyright violations, EMI's lawyers sprang into action, serving cease and desist letters to both Danger Mouse and the local record stores that stocked the limited-release CD.15 EMI's lawyers also sent cease and desist letters ordering that all physical copies of the record be destroyed, thereby transforming the CD into a collector's item.16 Fans of the work ralUed in support of The Grey Album, with over 170 websites hosting free mp3 downloads of the record on what the organizers deemed "Grey Tuesday."17 Additionally, following the cease and desist, the album was widely downloaded on peer-to-peer websites, inspiring similar remix attempts18 and even video mash-ups that place Jay-Z and the Beades in concert together.19 Although EMI declined to pursue action against either Danger Mouse or the "Grey Tuesday" participants, The Grey Album remains illegal. Still actively shared on peer-to-peer websites, it made significant cultural contributions to the rising mash-up scene.20 However, its quick removal from commercial channels and subsequent banishment to the dark corners of the Internet robbed The Grey Album of its rich potential to change the mainstream musical landscape. …