To Promote the Arts: The Grey Album and the Copyright Clause

The Grey Album, a mash-up of the Beatles’ White Album and Jay-Z’s Black Album, was released in 2004 by a producer called Danger Mouse.  It soon caused a storm of controversy when record label EMI (which holds the copyright on many of the tracks from The White Album) attempted to block distribution of the album. Danger Mouse’s fans and activists for loosening copyright restriction protested with a day of civil disobedience during which multiple websites offered the album as a free download. Today the case of The Grey Album is often cited as a quintessential example of the issues surrounding remixing, sampling, and copyright.

US copyright law is based on the “Copyright Clause”, Article 1, Section 8, Clause 8 of the Constitution, which states that Congress shall have the power “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.” Now, whether or not music constitutes a “useful Art” may be up for debate, but the language is sufficiently vague that challenging the idea of holding a copyright on music in court would probably not hold up, and “useful Art” is essentially considered to cover all forms of artistic expression. The justification for copyright is, interestingly, not explicitly economic (to allow authors/inventors to profit from the “fruit of their labors”, as the common formulation goes), but rather to promote the arts and sciences themselves. The implication, however, is that this promotion happens by rewarding creators and inventors with the right to make a profit off of their work.

However, the case of The Grey Album gives us a perfect example of the ways in which US copyright law can be used, not to promote the progress of the arts and sciences, but to suppress artistic creations. The White Album was successful in its own time, and one can hardly make the argument that allowing it to be sampled and remixed would in any way detract from its sales, much less hinder the progress of Art itself! Artists are hardly going to hesitate to make albums simply because they fear them being remixed by other artists.

Ultimately, the question of whether The Grey Album is different enough from The White Album to constitute fair and transformative use is open to interpretation (although I would argue that it is transformative use). However, from the standpoint of the original intent of the Copyright Clause, which is to promote the general growth of art and innovation in America, it would take some pretty twisted logic to argue that EMI is justified in trying to block the distribution of The Grey Album.