By Evan Brown

In recent years, mashups have gained quiet prominence in the hip-hop and dance music scenes. As sample-based music has proliferated, many producers have done what artists and students in many media have done—tried their hand at reimagining influential and interesting works by other artists. This sometimes takes the form of combining—“mashing up”—the songs of different artists in musically pleasing ways. This was a logical extension of both sampling and a tradition among DJs of mixing a capella tracks with instrumental tracks. But in decades past most of these attempts were either ephemeral performances or never distributed beyond the producer’s own social circle. But online distribution via personal websites, YouTube, and newer platforms like Bandcamp, Soundcloud, and DatPiff has made it easier than ever to get mashups to the masses—and to copyright holders.

Artists like Danger Mouse, Girl Talk, Tom Caruana, and Amerigo Gazaway have perfected the art of deconstructing, combining, and reconstructing popular tunes. They have also perfected the art of getting their music out. After Danger Mouse mashed up The Beatles’ “White Album” with Jay-Z’s The Black Album to create his groundbreaking 2004 record The Grey Album, EMI records sent a cease-and-desist letter that prompted him to recall the vinyl records he had distributed through retailers. But instead of burying The Grey Album, the threats launched it: online activists coordinated “Grey Tuesday,” a one-day Internet distribution blitz through which some 100,000 people downloaded digital copies of the album. Today, the pattern is reversed: mashups are usually first uploaded to the Internet for cheap and easy distribution and only pressed to vinyl or (rarely) released on CD once they gain a following. Record companies who own the copyright in mashed up sound recordings have caught on and are now threatening lawsuits as early as possible to nip the online presence in the bud.

Mashup artists tend not to have the resources necessary to actually challenge the labels in litigation, so they often relent. For example, Sony recently sent a cease-and-desist letter to Gazaway over the mashup album Bizarre Tribe: A Quest to The Pharcyde. An emerging artist without the backing of a major label, Gazaway relented and pulled the album from his website and Bandcamp. All he could do was write, send, and publicize a response letter, hoping to bring fans’ fervor to bear against Sony. This was not unlike Danger Mouse’s response back in 2004. When a powerful label threatens a poor musician with a crippling lawsuit, this tends to be the result.

Mashup artists usually deal with the potential for liability in non-legal ways.  The most obvious and time-tested is simply hiding the samples by making them short or altering them beyond recognition. The idea is to remain below the labels’ radar entirely. As 1990s mashup innovator DJ Shadow once said, obscurity “helps [with] the 50 samples per song that you can’t clear[.]” Another method of avoiding the labels’ ire is to sample older songs that newer, more popular songs famously sampled. This is what Gazaway did with Bizarre Tribe, going back to the sources for the sounds popularized by hip-hop legends A Tribe Called Quest and The Pharcyde. Yet, as Gazaway’s case makes clear, those sorts of methods remain risky so long as the copyright holder can argue that ordinary listeners would confuse the two and the method is just a roundabout manner of copying.

But could a mashup artist win in court? In the wake of the Sixth Circuit’s Bridgeport Music decision in 2005, even minor background samples may be grounds for infringement. (For more information on the decision and its significance, see our recent post on this topic.) But even assuming that copyright holders can establish the elements of infringement in any particular case, the fair use defense may still protect mashup artists. If a mashup can be characterized as a parody, it will probably be considered a fair use. But most mashups are new works intended more as homages than works of criticism. The primary questions then become whether a mashup constitutes a transformative work and whether it can impact the market for the original. Because most mashups rely to some extent on the recognizability of their component songs, it is difficult to argue that they are truly transformative. Moreover, market impact presents a tough challenge. In cases like Gazaway’s, where the audience for the original works and the mashup is to some extent the same, this is a problem. But what about mashups like The Grey Album or Caruana’s Enter the Magical Mystery Chambers that combine songs by artists with very different audiences? Perhaps in those cases, market impact could be overcome. In general, it would be difficult, but certainly not impossible, for mashup artists to establish fair use.

These questions will probably not be answered any time soon. Because mashup artists are unlikely to engage a copyright holder in litigation, the much-needed test case may take a long time to emerge. Perhaps more importantly, so long as threats are sufficient to prompt takedowns, record labels may well escalate their efforts to kill mashups in the online cradle. Until a mashup winds up before a jury in an infringement case, we can only wonder whether these threats are truly justified.