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Kembrew Gets Cease & Desist Letter from EMIU of Iowa Professor Served Cease and Desist for Copyright
Civil Disobedience Kembrew responds with a one finger salute in front of EMI/Capitol Records
However, it’s perfectly okay for musicians to remake their own versions of a song (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 cover other musicians’ music has been in place since 1909. It’s in this way--and many other ways--that copyright still has not caught up with a collage method that is a century old. Dangermouse made only 3,000 copies, but it spread like digital
wildfire on file-sharing networks. It then received coverage from
The New Yorker, The New York Times and Rolling Stone, which called
it “an ingenious hip hop record that sounds oddly ahead of
its time.” As a scholar who studies the way copyright often
constrains certain kinds of creativity, I feel a responsibility
to demonstrate that fair use--which allows people to use a copyrighted
work for the purposes of journalism, education, criticism, parody,
etc.--exists in practice, not just theory. But according to EMI,
every journalist and curiosity seeker who downloaded or uploaded
this banned record broke the law. I’m a professor who regularly
teaches undergraduate and graduate courses on copyright, popular
music, and pop culture, and it’s important for me (and others)
to make certain copyrighted materials available without worrying
about getting sued. It is in the spirit of promoting conversation and debate about
an illegal artwork (and a broken copyright regime) that I have engaged
in this act of copyright civil disobedience. The “Grey Album”
is not causing EMI economic harm. There’s no way any Beatles
fan will choose to download the “Grey Album” in lieu
of purchasing the “White Album,” and the same is true
of Jay-Z’s fan base. In fact, this controversy has likely
sold a few CDs for both artists. The “Grey Album” has
been banned because it doesn’t fit into an outdated copyright
regime, which is why it’s of interest to many journalists,
law professors, media scholars, music fans and others. This is the
purpose of the fair use statute: to balance authors’ rights
with the public’s right to access information. The Grey Album is yet another recent example of a creative work
that has no place in this world; it was stillborn, legally, even
if it’s very much alive, creatively. This is ironic, especially
given that copyright was conceived not just to reward authors, but
also to encourage the dissemination of new works. My NYU copyright
comrade Siva Vaidhyanathan asks in his forthcoming book, The Anarchist
in the Library, “Should creativity be reserved for professionals
and experts? Or will teenagers in their basements and libraries
be able to soup up or strip down the signs, symbols, and texts that
make up such an important part of their lives?” A final irony in the “Grey Album” flap is that “Revolution #9,” which appears on the Beatles’ “White Album,” was entirely a work of collage. “We were cutting up classical music and making different size loops, and then I got an engineer tape on which some test engineer was saying, ‘Number nine,’” John Lennon recalled, talking about the material they pillaged from the EMI archives. While the Beatles obviously had implicit approval from EMI to chop up the company’s material, it’s highly unlikely that the Beatles’ paid any “sampling” royalties or got permission from the original performers. The Beatles: the original copyright criminals? No, musical borrowing has a long history--from Woody Guthrie to Francis Scott Key and beyond. As Igor Stravinsky once said, “ A good composer does not imitate, he steals.” Click here to download the Grey Album and Grey Video ### Distribution of The Grey Album constitutes a serious violation of Capitol's rights in the Capitol Recordings – as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies – and will subject you to serious legal remedies for willful violation of the laws. We accordingly demand that you cease any plans or efforts to distribute or publicly perform this unlawful recording. As you are no doubt aware, The Grey Album is an amalgamation created
by an individual named Brian Burton (a/k/a Danger Mouse) of Jay-Z's
The Black Album and the Beatles' self-titled 1968 album commonly
known as The White Album. There is no dispute that The Grey Album
incorporates Capitol Recordings, as Mr. Burton acknowledges on his
website (http://www.djdangermouse.com) that "every kick, snare,
and chord is taken from the Beatles White Album and is in their
original recording somwhere [sic]." There is also no dispute
that Mr. Burton never requested permission from any of the rights-holders
to create The Grey Album. The artist, whose real name is Brian Burton, has agreed to comply
with the order and will no longer distribute copies. "He just
wanted people to hear the record," says a spokesman in the
U.K. Reuters has also quoted Mr. Burton as saying, "[t]his
wasn't supposed to happen . . . . I just sent out a few tracks (and)
now online stores are selling it and people are downloading it all
over the place." By further distributing The Grey Album, you
will not only be violating the rights of those who own the recordings
and compositions at issue. You will also be interfering with the
intention of the very artist whose rights you purport to vindicate. We are aware of the so-called "Grey Tuesday" event, sponsored
by http://www.downhillbattle.org and described on the http://www.greytuesday.org
website as a "day of coordinated civil disobedience" in
which participating sites will make the unlawful Grey Album available
for downloading, distribution, and file-sharing in order to force
"reforms to copyright law that can make sampling legal."
Your site is listed among those that will engage in this openly
unlawful conduct. Any unauthorized distribution, reproduction, public
performance, and/or other exploitation of The Grey Album will constitute,
among other things, common law copyright infringement/misappropriation,
unfair competition, and unjust enrichment rendering you and anyone
engaged with you in such acts liable for all of the remedies provided
by relevant laws. These remedies include but are not limited to
preliminary and permanent injunctive relief as well as monetary
and punitive damages necessary to remedy your openly willful violation
of Capitol's rights. We accordingly demand you: In addition, to the extent that you have already commenced distribution
of The Grey Album, you must make payment to Capitol in an amount
to be discussed. We demand that you contact us immediately. Nothing herein shall be deemed an admission or waiver of any rights
or remedies of Capitol and/or its affiliates, all of which are hereby
expressly reserved. Sincerely, /s/ J. Christopher Jensen |
On
February 24, 2004, I was one of many people who received a cease
and desist letter from EMI Records. On my personal Web site, Kembrew.com,
I posted MP3 copies of Dangermouse’s “Grey Album,”
an artistic experiment that placed the vocals from Jay-Z’s
recent “Black Album” on top of chopped up, reworked
samples from the Beatles’ “White Album.” Under
the current copyright system, owners insist that it’s illegal
to sample without permission, even if one offers to pay royalties.