As the color of the Album “Gray” I can say there is not white and black opinion. It is very difficult to set a clear point of view because the historic moment and the parties involved in the case. It depends on which side of the battlefield you are.
One side is those involved in the control of the digital distribution, the owners of the most important music catalogues, and those engaged with music copyrights (record labels). On the other side, there are the new artists seeking to take advantage of new technologies and social media and use them creatively (Danger Mouse, Remix Dj’s and supporters).
In 2004 Danger Mouse released “The Gray Album”, a 12-song set containing mash ups of samples taken from the Beatles “White Album” and the Jay-Z’s “The Black Album”. This was the first time someone used the Beatle’s samples without legal authorization. Although Mouse is using a small part of different samples he intended to produce a sound that directly relates the original Beatle’s songs. For instance in the song “What more can I say” he uses the original recording of the song “While My Guitar Gentle weeps” as the base of the song and the original chorus.
Mouse didn’t have the right to use these samples but he was aware that he needed the permission from EMI and Capital Records to use the Beatles recordings. He knew he was infringing multi-copyright legislation. At the beginning Mouse was only sharing this material with friends and his DJ colleagues, but once this had been shared with 3,000 people the work began to be copied and followed by a bigger number of fans. EMI tried to stop the distribution of this album asking Mouse to “cease and desist”. They asked Mouse to pull out the album from the market but it was almost impossible due to the big number of illegal downloads on Internet taking place through peer-to-peer file sharing. On top of this, the Rollin Stone Magazine and the New Yorker had profiled the album and provided it with tons of publicity that made it even more sought after. The album was so successful it won the Entertainment Weekly award as Album of the year.
Although I am generally in favor of sampling, it is impossible to deny that Mouse did indeed take an essential copyrighted sound for his mash ups. Here is the example of the song “99 problems” that deliberated use the drums breaks, electric guitar, background voices of “Helter Skelter”.
The supporters of the project ignored EMI’s notifications arguing the fair use of sampling and started an unprecedented cyber activism. This reaction brought global awareness of the cyber, cultural and political protest in relation to music. The activist group Downhill Battle promoted the sharing of the album. On February 24, 2004 more than a hundred web sites allowed the free but “illegal” download of the 12 tracks. Within 24 hours more than 100,000 downloads were done which is the equivalent of one million tracks. This day was known as the “Grey Tuesday” and both downloads and the weblogs helped to spread the word and support for the Grey Album.
In reaction to this movement, EMI letters to the web sites in order to stop the action taking place online saying that all who participated were potentially facing the risk of being sued by EMI. Although this did not happen and there are no suits against users or websites, nowadays some of the pages expose a legend about that on their main sites.
At the end, Sony/ATV didn’t want to take Mouse to court, as this would mean a large and expensive legal battle. Firstly, they would need to analyze how much of the original tracks of Lennon-McCartney and Harrison where used in each song of the Grey Album. Secondly, if they want to sue the protestors they would need to engage in a case-by-case scenario, which would have no beginning or end given the huge amount of people that were part of this process.
Amazingly the ex-Beatles Paul McCartney and Ringo Star are not opposed or at least they didn’t react against the Gray Album. It was until 2011 when Sir Paul McCartney said that he is a supporter of sampling and Mouse creations. In the case of Jay-Z and Roc-A-Fella Records, they didn’t want to get legally involved in the case. Jay-Z, as we all know, has been using many remixes in his albums for which it would be contradictory for him to be part of this case.
Mouse didn’t ask for the right use of the samples he smashed up. Based in this situation he was committing copyright infringement no matter how many copies he wanted to release. In my point of view The Gray Album changed the music industry and the way all the digital distributors understand copyrights. It became a new way of think in creativity. As Danger Mouse said in the “Alternative Freedom The movie” (min 1:02:20) when gives his opinion about copyrights: “ Maybe it change the people perception about how they thought about rock ‘n roll music, or The Beatles and hip hop, Jay-Z… it is just perception.