What would it sound like if Beyoncé sang doom metal? You’ve probably never asked yourself that question. As it happens though, I’m a big fan of both Beyoncé and doom metal, and a few years back, I became unaccountably obsessed with finding out what would happen if you put them together. So I took the Garage Band software that came with my computer, plugged in an mp3 of Beyoncé’s song “Single Ladies,” added an mp3 of Australian female doom metal duo Murkrat’s “Plague Gestation” and…voila! I had created a work of genius (or something) for the world to admire.
My Beyoncé/Murkrat hybrid monstrosity is a (very clumsy) example of a mashup — a song created by combining two or more different recordings. Depending on how you look at it, mashups have been around for a long time: the New York Times ran a piece dating them back to Charles Ives’ 1906 sound collage “Central Park in the Dark.” Most mashups today though are less highbrow. One example is this crazed mashup put together by Wax Audio of Iron Maiden and the Bollywood soundtrack for Dhoom2. One more example is this mashup, also created by Wax Audio, of the Bee Gees and Pink Floyd. The video is so arch that it’s hard not to see it as a deliberate parody — both of the vapidity of the Bee Gees and of the pretensions of Pink Floyd.
Parodies, of course, have considerable legal protection under the First Amendment. Thus, in the case of Campbell v. Acuff-Rose Music, the Supreme Court ruled that a song by 2 Live Crew that used samples of Roy Orbison’s “Pretty Woman” qualified for Constitutional protection because it was “clearly intended to ridicule the white-bread original and remind us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences.”
As an essay at the law firm McBride Law, PC notes, though, most mashups aren’t parodies. Instead they “involve straight-forward, albeit very creative, borrowing of another’s work.” In other words, a mashup doesn’t comment on works of art; it simply combines them. Copyright law as currently constituted is generally intended to protect original artists from just such borrowing. As a result, the essay at McBride Law concludes mashups are—in most cases—probably illegal.
Because of their quasi-legal — or flat-out illegal — status, mashups are almost never sold. Instead, they are usually made available for no charge, often essentially as free samples advertising a DJ’s set or performances. Or, in some cases, a person like me who doesn’t DJ may simply make a mashup available because he or she likes to share music.
I may like sharing music, but the fact remains that I don’t own the rights to Beyoncés’ “Single Ladies,” nor to Murkrat’s “Plague Gestation,” nor to the Carter Family snippet at the end of my mashup. The record companies that do hold the rights could, therefore, take legal action against me.
This does, in fact, occasionally happen to mashup artists. For example, the rights holders for deceased Nirvana singer and guitarist Kurt Cobain have been quite aggressive in demanding that his vocals not be used in mashups. Similarly, when DJ Danger Mouse put together The Grey Album — a full album length combination of The Beatles White Album and Jay-Z’s Black Album — he received a cease and desist letter from the Beatles’ label EMI took no further legal action though, perhaps in part because Paul McCartney publicly said he was a fan of Danger Mouse’s work (as, for that matter, did Jay-Z). The Grey Album is still readily available online.
The fact that artists often seem happy to ignore or even support mashups of their work suggests that the ethics of mashups can be even more complicated than the legal issues surrounding them. There’s no doubt that a mashup can promote the music it borrows — I bought the Dhoom 2 soundtrack after seeing the video of that Wax Audio mashup, and listening to The Grey Album now for the first time is making me realize that I really need to purchase more of Jay-Z’s music. Artists will sometimes even deliberately use mashups as promotional tools. In 2004, David Bowie offered a sports car to the mashup artist who best combined two of his songs.
While mashups may benefit the original artists, though, they don’t necessarily do so — or, at least, they don’t do so in a predictable and legally sanctioned way. There is no set means for mashed-up artists to receive a fee for their contribution to the mashups.
What would a legal, ethical mashup system look like? I’m not a lawyer, but it seems like the best approach would be to use a formula that has already been in use for decades — that established to deal with cover songs. Songwriters have a straightforward way to be recompensed for use of their work. As Jeff Price of the online music distribution site TuneCore explains:
First, if the songwriter (Dolly) has commercially released her song, anyone who wants may cover her song on their release as long as the songwriter is paid the “mechanical royalty” for each reproduction. In other words, once you release a song, you cannot stop anyone from covering it. However, anyone that covers your song MUST pay you the mechanical royalty rate. If they don’t, they have violated the law and you can sue them.
This system has advantages for both the songwriters and the cover artists who use their work. Songwriters, obviously, get paid. Cover artists, for their part, know exactly what rate they will pay for using a song, and do not have to worry about songwriters denying them rights. This can be a serious problem. 2 Live Crew, for example, initially tried to get the rights to “Pretty Woman” from Acuff-Rose, but — because they were sampling the track rather than covering it — they were refused. The current system, then, allows songwriters to be fairly recompensed for their work. But it also recognizes the interest of other artists, and of society, in making that old work available for new artistic purposes.
The Constitution actually says that copyright is meant “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, legally—and I would argue, ethically—copyright is intended not to protect property rights, but rather to promote art and creativity. Making sure that artists don’t get ripped off is an important part of providing them with the incentive to create. But so is creating a legal climate in which artists are able to innovate without fear of being sued.
Creating mashups without compensating the remixed artists may be unethical — but strangling a new, exciting, creative art form isn’t ethical either. I don’t think I’ve done anything immoral by making Beyoncé perform with Murkrat. But I do think that everyone involved in mashups — record companies, pop stars, doom goddesses and laptop tinkerers alike — would be in a better position ethically if we could figure out a way to make mashups legal.
Noah Berlatsky is the editor of the comics and culture website The Hooded Utilitarian, and has written for Slate, the Atlantic, Splice Today, and the Chicago Reader, among other venues. He is currently working on a book about the first Wonder Woman comics. You can contact him at firstname.lastname@example.org.