Something's come up in the world of Internet music access, and I figured I'd put my shallow & superficial take on it. CNN reported this story, and it's solely upon the basis of their facts that I write.

Brian Burton, an English disk jockey D/B/A DJ Danger Mouse¹ , has released a remix that somehow meshes together The White Album by those lads from Liverpool (Get back on the 707! Go back!) with The Black Album by a performer named Jay-Z.

I don't know exactly how they did this and I haven't heard the album, but ostensibly there was some studio magic involved. Despite the fact that I took intellectual property a couple of semesters back , I'm not entirely sure how this gets analyzed. I've got a vague notion of the fair use defense and I'm also harboring a thought that DJ DM could argue satire or parody.

The first case I can automatically think of is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). In this case, Acuff-Rose sued Luther Campbell and the 2 Live Crew over the latter's remake of Roy Orbison's hit "Oh, Pretty Woman". The Court held that 2 Live Crew had a fair use defense because their version was a parody of Orbison's original. That the 2 Live Crew song was also for commercial purposes, although a factor, was not in and of itself conclusory. The case was subsequently remanded, but to what end I don't know---and it's not ultimately important.

Justice Kennedy, in his concurrence, seems to have put a series of nails in DJ DM's case by saying, "As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody." This fellow hasn't apparently said anything about parody or satire, so he may be up the creek when it comes to a post hoc rationalization scenario.

If I were DJ DM's counsel in an American court, I'd try to note the non-commercial nature of the item. However, DJ DM made the mistake of selling these items himself to record stores, and that's going to be hard to get around. Something else I'd at least try is to argue that the two weeks spent on the remix, taken in conjunction with what it takes to do one of those, plus DM's own special applications of his skills as displayed in meshing the two albums with his own signature style (if he's got one) would constitute significant transformative use, such that a new item had been created.

In the event that I get wind of any developments in this case, I'll probably throw them up here; I'm actually kind of interested to see how this will turn out. It is heartening to see that Jay-Z's management didn't seem to care about the fact that one of their people was used in this manner.

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¹ You've got to love a guy who steals his nickname from Danger Mouse, a fine Cosgrove-Hall production and brought to Americans by Nickelodeon back when Nickelodeon mattered. To this day, I occasionally trot out Penfold's "Crumbs!" when something goes wrong, and I can readily hear the voice of the narrator intoning "LONDON" as we pan over a cityscape. It's said with the utter finality of a pronouncement from God, and you've just got to love it.

Posted by: Country Pundit at 09:51 PM | No Comments | Add Comment
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