SXSW Panel Cage Match Part II: Girl Talk and The Public Domain

Apparently, if one is interested in learning why it is that the record labels haven’t sued Girl Talk, the SXSW panel entitled “Why the Record Labels Have Not Sued Girl Talk” is not the place to go a-lookin’.  You may come away with a new sense of the seemingly arbitrary ambiguities of copyright law, distilled in questions like: “why it is that Warhol wasn’t sued for the Campbell soup can when Biz Markie had his baggy pants sued off him for sampling Parliament?” As to why the record labels haven’t sued the famed DJ who cobbles together hundreds songs in record length mash-up mixes and allows fans to purchase them online for the price they deem fit, the panelists didn’t really know.  Or care.  Or something.  It was weird.

Rather than discussing the question at hand, the quite charming DJ Spooky waxed about Emerson, Whitman, 19th century anthropology, and quoted William Gibson (turns out Spooky is pretty sweet) and a pair of lawyers, Nancy Praeger, a DC attorney, (who opened with the Boston Legal worthy: “I chose to work in fair use copyright law because copyright law is the hardest area of law and fair use is the hardest area of copyright law,”) and Andre Smith, a professor at Florida International literally shouted at each other about the meaning of public use. (Maybe they already didn’t like each other?) The hundred plus folks that crowded into room 13-A of the Austin Convention Center, however, came to hear: why it is that record labels have not sued Girl Talk? So, with only five minutes left in the allotted 90 minutes, when an audience member shouted from the back row:  “So WHY HASN’T Girl Talk been sued????” it was met with a chorus of “thank you!” “yeah”s and overall “what-the-hell?”

Two panels attended by your humble sxsw blogger, two bizarre bouts of verbal blows to match the 3am scene on 6th street (Wednesday night featured an impending brawl between two Texas hippies: “Dude, I don’t even like you, dude!”).  The convention center, it turns out, is no respite from the drunken night.

In the midst of the chaos of the conversation, however, a rather interesting discussion about fair use, copyright, and property managed to almost (not quite) emerge.  Turns out that the constitution says something about copyright being necessary to “protect the useful arts” which, of course, is not all that clear and seems intended to inspire a debate about “useful” and “arts.” (Founders, you some wily dudes!)  Ditto “fair use,” which any 3rd grader will tell you depends on your definition of “fair.”  Copyright law is the legal arena, then, where we decide when “borrowing” or “building” or “stealing” is in the public interest, and when it threatens private property and thus the public interest.  As Prof. Smith put it, “the right to property is not an absolute, and it never has been.”

Much of the discussion revolved around the ways in which the line between legal and illegal borrowing/building/stealing is tested.  For instance, if you change something enough it can be “fair use.” Or if you have someone else sing the hook (Kanye’s end-run around Lauryn) then you’re “fair.”  Which doesn’t seem to make much sense, but then the law doesn’t seem to be all that clear.  There was at least consensus on that, and a call for judicial/government/congressional action.

Or maybe not.  The really strange thing about the panel was that most folks in the room (ok, fine: at least this one) had no idea what the fight that broke out was really all about.  The two lawyers clearly had different views on the meaning of “public domain,” with one holding a much stricter view of copyright and the other a much more generous interpretation.  I think.  Their points were lost in all the shouting and pouting.

What did seem pretty clear is that, at least according to these panelists, what Girl Talk is doing is not legal.  The consensus was that he isn’t changing stuff enough to make it “fair.”  The question then as to why Girl Talk has not been sued turns out to be totally fascinating and potentially worthy of a panel discussion.  The answers proffered in the final minutes, in response to the audience’s surly demands, were: he’s been lucky and will be sued soon, the legal fees are too expensive for the labels, and that the companies are scared of losing and setting a precedent.  One layman’s response might be: “Perhaps it has to do with him not selling his records,” but that — remarkably — was not ever mentioned.

My humble hypothesis, thrown into the room in the panel’s last minutes, is that Girl Talk demonstrates the neat overlap between legal ruling and economic interest.  Girl Talk may be breaking the law, but in this case he’s helping the labels sell records.  When kids listen to that mash up of 365 mafia and Cher, they maybe go online and buy both songs for 99 cents each.  The irony being that only when is a piece of music is actually “transformed” is it in the label’s interest to sue, yet when it is used more or less in its entirety and therefore blatantly illegal, the economic rationale for litigation disappears.