Grey Tuesday

It’s Grey Tuesday…

It’s time for music fans to stand up and demand change from the music industry’s copyright cartel.

Tuesday, February 24 will be a day of coordinated civil disobedience: websites will post Danger Mouse’s Grey Album on their site for 24 hours in protest of EMI’s attempts to censor this work.

DJ Danger Mouse created a remix of Jay-Z’s the Black Album and the Beatles White Album, and called it the Grey Album. Jay-Z’s record label, Roc-A-Fella, released an a capella version of his Black Album specifically to encourage remixes like this one. But despite praise from music fans and major media outlets like Rolling Stone (“an ingenious hip-hop record that sounds oddly ahead of its time”) and the Boston Globe (which called it the “most creatively captivating” album of the year), EMI has sent cease and desist letters demanding that stores destroy their copies of the album and websites remove them from their site. EMI claims copyright control of the Beatles 1968 White Album.

Danger Mouse’s album is one of the most “respectful” and undeniably positive examples of sampling; it honors both the Beatles and Jay-Z. Yet the lawyers and bureaucrats at EMI have shown zero flexibility and not a glimmer of interest in the artistic significance of this work. And without a clearly defined right to sample (e.g. compulsory licensing), the five major record labels will continue to use copyright in a reactionary and narrowly self-interested manner that limits and erodes creativity. Their actions are also self-defeating: good new music is being created that people want to buy, but the major labels are so obsessed with hoarding their copyrights that they are literally turning customers away.

This first-of-its-kind protest signals a refusal to let major label lawyers control what musicians can create and what the public can hear. The Grey Album is only one of the thousands of legitimate and valuable efforts that have been stifled by the record industry– not to mention the ones that were never even attempted because of the current legal climate. We cannot allow these corporations to continue censoring art; we need common-sense reforms to copyright law that can make sampling legal and practical for artists.

The Grey Tuesday protest is being organized by Downhill Battle, a music activism project that has no affiliation with Danger Mouse.

And on that note…

Update:

Much as I’d like to continue this, I just joined the many people who have been sent “Cease and Desist” letters. I debated leaving the links up, but should the lawyers decide to follow through, there’s no way I’d be able to put up a fight (not that I’d have any money to give them anyway, but it’d be more hassle than I want to deal with). I’m sure that many other sites will continue to offer the Grey Album over the course of the day, and possibly beyond, and I wish them the best of luck.

This time, though, I’d rather record that I made my statement of support and participated until receiving the Cease and Desist — at which time, for my own protection and peace of mind, I did just that.

The letter I received follows (though it’s the same letter that other sites were getting yesterday)…

From: JCJ\@cll.com
Subject: The Grey Album and Misappropriation of Capital Records, Inc.’s Sound Recordings
Date: February 24, 2004 9:50:43 PST
To: djwudi\@myrealbox.com

Cowan, Liebowitz & Latman, P.C.
LAW OFFICES
1133 Avenue of the Americas
New York, NY 10036-6799
Telephone (212) 790-9200
Web www.cll.com
Fax (212) 575-0671

Re: The Grey Album and Misappropriation of Capitol Records, Inc.’s Sound Recordings

To Whom It May Concern:

We are counsel to Capitol Records, Inc. (“Capitol”), the exclusive U.S. licensee and/or owner and distributor of musical sound recordings featuring performances by The Beatles. We write concerning your announced intention of distributing an unlawful and unauthorized sound recording known as The Grey Album on February 24, 2004. This infringing album contains extensive samples from recorded performances by the Beatles, including “Long, Long, Long,” “While My Guitar Gently Weeps,” “Glass Onion,” “Savoy Truffle,” “Mother Nature’s Son,” “Helter Skelter,” “Julia,” “Happiness is Warm Gun,” “Piggies,” “Dear Prudence,” “Rocky Raccoon,” “Revolution 1,” “Revolution 9,” “I’m So Tired,” and “Cry Baby Cry” (the “Capitol Recordings”). Distribution of The Grey Album constitutes a serious violation of Capitol’s rights in the Capitol Recordings as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies and will subject you to serious legal remedies for willful violation of the laws. We accordingly demand that you cease any plans or efforts to distribute or publicly perform this unlawful recording.

As you are no doubt aware, The Grey Album is an amalgamation created by an individual named Brian Burton (a/k/a Danger Mouse) of Jay-Z’s The Black Album and the Beatles’ self-titled 1968 album commonly known as The White Album. There is no dispute that The Grey Album incorporates Capitol Recordings, as Mr. Burton acknowledges on his website (http://www.djdangermouse.com) that “every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somwhere [sic].” There is also no dispute that Mr. Burton never requested permission from any of the rights-holders to create The Grey Album.

Capitol has demanded that Mr. Burton cease distribution of The Grey Album, and Mr. Burton has indicated publicly that he intends to comply with Capitol’s demands. As reported by Reuters on February 17, 2004:

Danger Mouse said he created the record strictly as a limited-edition promotional item, with only a few thousand copies pressed . . . .

The artist, whose real name is Brian Burton, has agreed to comply with the order and will no longer distribute copies. “He just wanted people to hear the record,” says a spokesman in the U.K.

Reuters has also quoted Mr. Burton as saying, “[t]his wasn’t supposed to happen . . . . I just sent out a few tracks (and) now online stores are selling it and people are downloading it all over the place.” By further distributing The Grey Album, you will not only be violating the rights of those who own the recordings and compositions at issue. You will also be interfering with the intention of the very artist whose rights you purport to vindicate.

We are aware of the so-called “Grey Tuesday” event, sponsored by http://www.downhillbattle.org and described on the http://www.greytuesday.org website as a “day of coordinated civil disobedience” in which participating sites will make the unlawful Grey Album available for downloading, distribution, and file-sharing in order to force “reforms to copyright law that can make sampling legal.” Your site is listed among those that will engage in this openly unlawful conduct. Any unauthorized distribution, reproduction, public performance, and/or other exploitation of The Grey Album will constitute, among other things, common law copyright infringement/misappropriation, unfair competition, and unjust enrichment rendering you and anyone engaged with you in such acts liable for all of the remedies provided by relevant laws. These remedies include but are not limited to preliminary and permanent injunctive relief as well as monetary and punitive damages necessary to remedy your openly willful violation of Capitol’s rights.

We accordingly demand you:

1. cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol;
2. identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album‘s unauthorized distribution, reproduction, public performance, or other exploitation;
3. provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of all instances of public performance of The Grey Album rendered via your website; and
4. preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation.

In addition, to the extent that you have already commenced distribution of The Grey Album, you must make payment to Capitol in an amount to be discussed. We demand that you contact us immediately.

Unless we receive full and immediate compliance with these demands, Capitol will be forced to consider pursuing any and all available remedies at law and in equity.

Nothing herein shall be deemed an admission or waiver of any rights or remedies of Capitol and/or its affiliates, all of which are hereby expressly reserved.

Sincerely,

/s/ J. Christopher Jensen

J. Christopher Jensen
Telephone (direct dial): (212) 790-9204
Email: JCJ\@cll.com

Note that this is a boilerplate letter that has been sent out to many (if not all) sites participating in Grey Tuesday (to the point that to post it here, I had to edit out glitches that had popped up during many forwards and re-sends that the legal counsel had not bothered to clean out of the text of the e-mail).

Item one of the demands has been complied with.

Items two through four I have no intention of complying with, and according to Downhill Battle’s lawyers can be ignored.

Lawyers have advised us that we can ignore your demands number 2, 3, and 4 that are listed at the bottom of your letter. EMI has no legal right to make these demands and we will not comply with them.

Good luck to all the other participants.

And lastly, with thanks to adam b. and The Beatles:

have you seen the little piggies
crawling in the dirt?
and for all the little piggies
life is getting worse
always having dirt
to play around in

have you seen the bigger piggies
in their starched white shirts?
you will find the bigger piggies
stirring up the dirt
they always have clean shirts
to play around in

in their sties with all their backing
they don’t care what goes on around

in their eyes, there’s something lacking
what they need’s a damn good whacking

— The Beatles, “Piggies”, from The White Album

iTunes: “Hass” by Das Ich from the album Relikt (Disc 1) (2003, 7:09).