Suppressed album finds voice on Web

The symbolism couldn't be more perfect. A DJ superimposes lyrics from Jay-Z's Black Album over spliced bits and pieces of the music from the Beatles' White Album. The result, aptly titled the Grey Album, blew critics away - Rolling Stone hailed it "an ingenious hip-hop record that sounds oddly ahead of its time." The DJ pressed about 3,000 copies of the album and has said he gave most of them away.

There's just one problem: The DJ didn't have permission to use any of the music.

Enter EMI Group, corporate guardian of the Beatles' recordings, which issued a cease-and-desist order to the DJ, whose real name is Brian Burton, in early February. He halted distribution of the Grey Album immediately.

While EMI says the issue is black and white, tens of thousands of consumers seem to think otherwise. An entire genre of music - the "mash-up" - uses other artists' work to make new sounds, and this genre is finding a large and enthusiastic audience. While no one disputes that Mr. Burton broke copyright law, many musicians and consumers are questioning whether that law is hindering artistic freedom.

"The album received critical acclaim," argues Holmes Wilson, cofounder of Downhill Battle, a music activist project. "It's advancing Jay-Z's legacy. And no one is going to buy this instead of the White Album. They aren't protecting the Beatles' rights - they're trying to suppress this work of art."

Shortly after hearing of EMI's cease-and-desist order, Downhill Battle announced that Feb. 24 would be "Grey Tuesday." As a form of protest, people could color their websites gray or host the album on their site to be downloaded freely by visitors. To his surprise, Holmes's clarion call for protest drew nearly 200 websites by Tuesday morning. As EMI issued cease-and-desist letters to the sites, even more signed on. Unable to handle large volumes of visitors, many of the sites hosting the album asked those with access to a file-sharing service to download it there instead.

"As a result, during the 24-hour period Tuesday, at any given moment on file-sharing networks there were 19,000 people hosting the album in its entirety," says Eric Garland, CEO of Big Champagne, an online media measurement firm. By the end of the day, more than 1 million songs had been downloaded, setting the album on par with top-selling artists Norah Jones and OutKast.

The overwhelming response took everyone by surprise, including Burton: "I did this project because I love the Beatles and Jay-Z," he says. "I knew when I produced the Grey Album that there might be questions and issues this project would bring up, but I really don't know the answers to many of them."

Jeff Antebi, CEO of Waxploitation, which manages Burton, says there would have been no fuss had the Grey Album not been so widely circulated. DJs make "mash-up" albums all the time, he says. "It was not meant for wide public consumption," he says. "It was meant for hip-hop purists on a street level."

The art of remixing is a "collage medium," says Stephen Webber, a professor of music production at the Berklee School of Music in Boston. "By limiting himself to two records, DJ Danger Mouse was challenging himself," he says. "It's like a sculptor saying, 'I'm only going to use this putty and this metal.' It requires skill."

The real issue is not whether Burton broke the law - he did - but whether the law still serves the people it was meant to, says Ren Bucholz of the Electronic Frontiers Foundation. "This is an art form that requires recapitulation of culture," he says. "Taking what you find around you in the larger culture and remixing it, turning it into something that arguably has extremely creative, innovative elements, is valuable. Copyright law, when properly interpreted, recognizes that."

But it is the unauthorized use of material, not the art form itself, that is illegal, points out Jeanne Meyer, a spokeswoman for EMI. "We authorize sampling and remixes all the time," she explains. "But he didn't ask for our permission. That's illegal."

But many labels make sampling all but impossible, given what they charge and the limited interaction they allow, argues Glenn Otis Brown, executive director of Creative Commons. "The result is no access, no learning, no experimentation," he says.

Jay-Z's label, Roc-a-fella, has taken a different approach than EMI. Damon Dash, head of Roc-a-fella, told the Associated Press that proper permission should have been obtained, but said, "I think it's hot. It's the Beatles. It's two great legends together."

Many hip-hop labels, in fact, release a cappella versions to encourage sampling, considering it free marketing, as Roc-a-fella did with the Black Album.

Copyright law was written, DJs argue, before sampling became an art form. "Hip-hop is based on ... blending genres and redefining them," San Francisco DJ Stefan Belavy says. "[It's] based on samples and subsequent variations - the endless permutation of a tune across technologies, genres, cultures. I can't see that changing."