Grey Tuesday: A Quick Overview of the Legal Terrain

Note: This is not legal advice. Consult with an attorney with respect to your own circumstances before acting on this, or anything else you read on the Internet.

The Grey Album and the Grey Tuesday protest have been extensively chronicled. This page is intended to explain some of the basic copyright law principles involved.

Background

First, it's important to understand that there are at least 4, and maybe 5, "rights-holders" potentially involved:

  1. Owners of the rights to the sound recording ("master") for the Beatles' White Album. That's EMI.
  2. Owners of the rights to the musical works (songs or "compositions") that appear on the Beatles' White Album. For the Lennon and McCartney songs, that appears to be Sony Music/ATV Publishing, a joint venture between Michael Jackson and Sony. It's unclear who owns the rights to the George Harrison songs.
  3. Owners of the rights to the sound recording for Jay-Z's Black Album.
  4. Owners of the rights to the musical works that appear on Jay-Z's Black Album.
  5. And, possibly, the owner of the rights to the Grey Album (presumably DJ Danger Mouse).

As of March 5, 2004, EMI has sent cease and desist letters to those who are posting the Grey Album as part of the Grey Tuesday online protest, and Sony/ATV has sent a DMCA "takedown" notice to at least one ISP.

Does EMI have a case?

There is no federal copyright protection for sound recordings made before 1972. Because the White Album was released in 1968, it appears that EMI has no federal copyright rights in the sound recording. Some record labels have argued that "digital remastering" creates a new work, protected under federal copyright laws. There don't appear to be any cases supporting this view, however, where a simple transfer to CD is involved.

Because federal copyright law does not protect the sound recording of the White Album, the usual federal copyright law remedies (statutory damages up to $150,000 per work infringed, relaxed standards for preliminary injunctions, attorneys fees) also do not apply.

State laws, however, may protect sound recordings made before 1972. Many states have their own copyright laws or may apply common law doctrines to protect sound recordings from misappropriation. The rights and remedies are likely to vary from state to state.

Does Sony/ATV have a case?

Sony/ATV appears to control the rights to the Lennon-McCartney compositions (the songs, as opposed to the particular recordings on the White Album) that appear on the White Album. Musical compositions (also known as musical works) were protected by federal copyright law when Lennon and McCartney composed the songs on the White Album.

Sony/ATV will have at least two hurdles to overcome in order to prove a federal copyright infringement case against Grey Tuesday protesters.

First, Sony/ATV will have to show that the samples used in the Grey Album took enough to infringe the rights in the Lennon-McCartney compositions. In Newton v. Diamond, the Ninth Circuit held that the use of a small snippet of a particular composition, even where sampled and looped repeatedly throughout a track, does not infringe the underlying composition unless it takes a substantial portion of it. The court described this as a question of fragmented literal similarity: "Fragmented literal similarity exists where the defendant copies of portion of the plaintiff's work exactly or nearly exactly, without appropriating the work's overall essence or structure." Consequently, Sony/ATV will have to persuade a court that the Grey Album songs appropriated a substantial portion of each of the Lennon-McCartney compositions that they claim have been infringed.

Second, Sony/ATV will have to overcome any fair use defense offered by the Grey Tuesday protesters. As discussed below, the protesters may have a persuasive fair use argument.

Are the Grey Tuesday protesters protected by fair use?

Fair use generally refers to the federal copyright law exception contained in Section 107 of the Copyright Act.

Because the sound recording of White Album is not protectible under federal copyright law, as discussed above, fair use is not directly applicable to any claims by EMI. State courts, however, are likely to look at federal fair use principles, as well as general principles of "equity" (i.e., fairness), in applying state law doctrines.

The fair use doctrine would directly apply, however, to any federal copyright infringement claims brought by Sony/ATV relating to the Lennon-McCartney compositions. In order to evaluate a fair use defense, a court generally looks at four factors:

  1. the purpose and character of the use,
  2. the nature of the copyrighted work,
  3. the amount and substantiality of the portion used, and
  4. the effect of the use on the potential market for or value of the copyrighted work.

These four factors are not exclusive; a court is entitled to look at other relevant factors, as well.

There are a number of characteristics of the Grey Tuesday protest that would likely weigh in favor of those who post the Grey Album:

  1. the posting of the Grey Album is for a noncommercial purpose;
  2. downloads of the Grey Album do not substitute for purchases of the White Album or other recordings of the Lennon-McCartney songs on the album;
  3. a copyright owner is unlikely to license a work for use in a protest that is critical of the copyright owner itself;
  4. the Grey Album is a transformative use of the White Album, not a wholesale copy; and
  5. the posting of the Grey Album is intended as part of a commentary on the use of copyright law to stymie new kinds of musical creativity.

Because fair use demands a case-by-case consideration of the particular facts surrounding any defendant, and because there is little case law addressing a situation like the one presented by Grey Tuesday, it is difficult to predict the outcome of any particular case. It is clear, however, that Grey Tuesday protesters have a credible fair use defense to any copyright claim by Sony/ATV.