November 2, 2008 by Carlo Rossi
In his New York Times Article “Steal This Hook? D.J. Skirts Copyright Law” Robert Levine presents Girl Talk, a D.J. “at the forefront of a group of musicians” who in Levine’s words “are challenging the traditional restrictions of copyright law along with the usual role of samples in pop music.” 
Girl Talk, a.k.a. Greg Gillis, is a Pittsburgh based D.J. in the “mashup” or “bootleg” style, that sees D.J.’s mixing together vocal and instrumental tracks from existing songs (often the most distinctive parts) to create their own “original” songs.
And while Girl Talk may only use short samples from each song with no recurring hooks – which makes it hard to associate any one sample with a particular Girl Talk track – he does not obtain permission to use these samples, instead holding on to the belief that his use falls within US law’s “fair use” exception to copyright.
Levine is correct in his characterization of the mashup style as providing a challenge to the traditional restrictions of copyright law. And it is one that goes to the heart of the debate over copyright protection and the justifications that accompany it.
Copyright law can be seen as a balance between “promoting the public interest in the encouragement and dissemination of works” on the one hand and “obtaining a just reward for the creator” on the other. Improvements in technology have made the digital manipulation of music more accessible and may be contributing to what some have termed the “democratization of creativity” and the “demystification of the process of authorship and creativity” but at the same time one can conclude that the same processes are posing unique challenges to the holders of copyrights. Not only are owners’ proprietary rights challenged, but authors’ moral rights are being challenged.
And despite Girl Talk’s optimism it is unlikely, even in Canada where recent jurisprudence has indicated a “user” centric and open approach, that this type of use will be exempted under fair dealing, making his use an almost certain infringement.
Where we stand on this issue really depends on where we tip the balance between so called natural rights (authors should be rewarded for their labour) and utilitarian ideals (the interests of society in the dissemination of creative works should trump authors rights, and where we see the appropriate incentives to create new works).
To many, copyright is seen, along with other intellectual property rights, as simply a means to an end. The author is granted certain rights as a means to encourage the public disclosure of their work, to the benefit of all.
Requiring an artist like Girl Talk to acquire permission for each track sampled, would likely prove to be prohibitive. And it is possible that excessive copyright is having a “chilling effect” on potential authors. But without appropriate incentives many potential authors are likewise unlikely to make their works public.
There is no easy answer. And this is likely to be a debate that continues well into the future.
 Robert Levine, “Steal This Hook? D.J. Skirts Copyright Law” The New York Times (6 August, 2008), online: The New York Times Company < http://www.nytimes.com/2008/08/07/arts/music/07girl.html?partner=rssnyt>
 See Galerie d’art du Petit Champlain Inc. c. Théberge,  2 S.C.R. 336 at para 30; CCH Candian Ltd. v. Law Society of Upper Canada,  S.C.J. No. 12 at para 23.
 Pete Rojas, “Bootleg Culture” salon.com (1 August, 2002), online: Salon Media Group Inc. < http://dir.salon.com/story/tech/feature/2002/08/01/bootlegs/index.html>
 See generally, G D’Agostino “Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use”http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014404) (under revision for publication in (2008) 53 McGill LJ 3).