Girl Talk has a new album out today that you can download for free here. Copyright nerds like me will note that Gillis has licensed this one under a Creative Commons license, with the attribution and noncommercial restrictions.
I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album. Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license. The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly. Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it. The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix. You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage. To the consumer it makes little difference, but to the remixer the difference is stark.
So, everyone go remix the Girl Talk album and post it on YouTube? Well, not so fast. All Day isn’t a lone, romantic album. Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on. If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings. He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs. (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)
The problem with using a Creative Commons license here is one of arithmetic. Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works. The sampled recordings aren’t under the Creative Commons license. To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song. Your defense is about as strong as Girl Talk’s defense. You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument. (There’s no indemnity clause or warranty of title in Creative Commons licenses.)
Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture. But as a legal matter it’s little more than a gesture. Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.
Now, will record companies sue you for remixing All Day? Probably not, only because it’s such a complicated case to make with little economic return. But will they send a DMCA takedown notice to YouTube over your remix? Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.