COPYRIGHT #5 – Created by and for publishers?

The debate on the existence of copyright focuses on whether the content creators need state enforcement to enable owners to gain returns, or whether the producers of the works respond significantly to financial incentives. [1]  If there is a way to prove that authors (a widely defined term) do not need the intellectual property concept of copyright to earn a living, then we can truly question ourselves if is it necessary to continue with this concept.  By looking into the history of copyright, we can see that copyright might not be needed in order for creativity to flourish. Copyright was introduced in England in the sixteenth-century as outgrowth of the privatization of government censorship. It thus helped the publishing industry to conveniently earn money through mass pressings with centralized distribution. This helped a few lucky works to be available to a wide audience providing the publishers a considerable profit. Publishers from most types of creative works have fought not only to preserve the business model, but to build a belief into people’s minds; the belief that using somebody else’s creation is stealing, and that those creators can only survive with the benefits of copyright. Regardless of the historic period, we talk about two different concepts that help us understand this belief. – I steal when I take something from you, and you don’t have it anymore – In terms of creation, I cannot steal something from you, if I take it and then, we both have it –. Returning to the beginning of copyright in New England for the writers, it started out as a censorship law.[2] With the world’s first arrival of the press, writers, if anything, were energetic to know about this new resource to get their work widely known. The English government was concerned about too many works being produced, and more specifically, about which works were distributed out there to the citizens. They had to control what creators wanted to communicate; this was achieved through a royal filter directly connected to the emerged publisher’s industry of that time. The method the government chose was to establish an association of private sector censors called the London Company of Stationers. They were granted a royal monopoly over all printing in England that could control unauthorized presses, books and basically publish only what they wanted. This way, the organization a private strategic profit maker that acted as a tax collector. All members that entered as Stationers had the right to copy and distribute a written work; This law was intended for publishers and sellers, not for authors. New books entered under a company’s member’s name, not the author’s member’s name. [3] The strategy behind this, is that authors do not have the means to distribute their own works, and thus they always need a publisher’s cooperation to make their work generally available.  

In 1710, the first recognizable modern form of copyright took effect in England. The Stationers persuaded the Parliament that authors were the first one to own the rights to copy and distribute their creation, knowing that they had little option but to give those rights to the publishers since they were entirely dependent on them to succeed. At first, this option seemed great for the Stationers until time passed by and the Parliament didn’t contribute anymore to the monopoly of printing and publishing. In this crucial period of history of copyright, was when the force of the copyright turned to the authors and the offer of printers and publishers suddenly increased. The Stationers had no more bargaining power and the authors now could decide were to publish they works. The creators now had the rights to authorize the copy with whomever they wanted. The overall record of the story of copyrights clearly states that it was created by and for publishers. Even though authors were benefited at that time and it can be seen as a fair model from author to publisher, the consequences of this design has lead us to what we have today. Publishers are the ones that have pushed the government to create and modernize the copyright law, while that is the core of their business. Surprisingly, this is not the core business of a creator.

[3] “An Unhurried View of Copyright”, Benjamin Kaplan Columbia University Press, 1967, pp. 4-5.

Black and White Makes Grey

“When you hear a riff similar to your own, your first feeling is ‘rip-off.’ After you’ve got over it you think, ‘Look at that, someone’s noticed that riff’… Imitation is the highest form of flattery!”
– Paul McCartney

Chances are this is old news to a lot of people, but I just heard about it yesterday so I’m betting there must be some people out there as oblivious as me. In 2004 a man by the name of Brian Burton, or more commonly known as DJ Danger Mouse, released an album called the Grey Album. There are a few remarkable things about this album I would like to outline in this post.


The Grey Album is a mashup between an a capella version of Jay-Z’s iconic Black Album and the Beatles’ timeless White Album. The Grey Album is more than just a slovenly thrown together mash up of the two albums, it is a complete breakdown and reconstruction of the music that creates something completely unique and different. Doing something like this is not easy, it takes enormous amounts of vision, skill, and talent. When listening there are parts where it is hard to believe that what Danger Mouse is creating came from only the two albums and no other outside sources or samples.


Danger Mouse has done something in 2004 that I believe is still far beyond our times even today. What is essentially being proven through this album is that recreating is in fact creating something new (hence black and white makes grey). And even further by that notion, that computers can be used as a tool to create music. Another way to put it would be that computers are valid and useful musical instruments that through mash-ups can most definitely be used to “promote the progress of useful arts.” Though the a capella version of Jay Z’s Black Album was released with the intention for it to be remixed, Danger Mouse did not have permission to use the work from the White Album. Within the context of copyright law this album was illegal and due to its popularity and hype, EMI ordered its distribution to be terminated. This album is ahead of its time both technically and in context with the legal boundaries it crossed. What I mean by that is that in the very near future, it is my belief that those legal boundaries will not exist. After all, the album did “promote the progress of useful arts”.


The album left a legacy.  It influenced some controversy with the law through an event not directly affiliated with Danger Mouse that was known as “Grey Tuesday”. On February 24th 2004 an activist group by the name of “Downhill Battle” organized an online protest. This was a protest against EMI’s attempts at halting the distribution of the album, as well as a general act against the structure of the music industry. Several free copies were released on over 170 websites to promote the idea that artists should be free to sample. Over 100,000 copies of the Grey Album were downloaded that day alone. Even more pertinent to creativity, the Grey Album inspired musicians all over the world to create several new mashups of Jay-Z’s music with artists including Radiohead, Metallica, Weezer, Wu-Tang Clan and others alike.

Whether or not record companies agree with sampling and remix, it is a large part of the future of music and it is important for music intermediaries to understand this. Changes in the law are most likely right around the corner and this means a world of both difference and opportunity in management, publishing, promoting and especially lawyering.

Phillip Richard