I wrote earlier this week about EMI’s legal attack on Hi5, and the advertising value its subsidiary Virgin Records got from the Daft Hands meme (which was exactly the kind of material EMI objected to Hi5 serving).

I’ve been listening to the new album from mashup artist Girl Talk (Gregg Gillis) a lot over the past couple of days and it brings up some issues in the same vein.

2006’s “Night Ripper” (torrent | complete list of samples) launched him into Pitchfork shininess, and the critical acclaim is well deserved. To give you an idea, here’s “Hold Up”, in which the samples range from Ludacris and 50 Cent to Weezer and the Pixies (NSFW):

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None of the samples on Gillis’ albums are rights-cleared. The costs would be prohibitive given the volume of material, but that’s still not the main issue (the record label is called Illegal Art, after all). This is about the struggle between private ownership and public access to popular culture. The music itself reminds us of the public-ness of pop culture: the whole effect of Girl Talk comes from taking the mass of personal and cultural associations you have with Missy Elliot, and smashing them together with those about Phil Collins. It reminds you how much of your own experience, how much of our shared experience, someone claims when they say they own a music track.

While he hasn’t been hit by any major suits (as far as I know), Gillis has left himself pretty vulnerable with his carpet-bomb approach to infringement. iTunes doesn’t carry him, and Amazon only has him through third party sellers. But Timothy Gabriele at PopMatters wonders if the new album, “Feed the Animals” (buy/download) might be able to find a loophole in its pay-what-you-want distribution model:

Consumers are not being asked to give money out for the purchase of Feed the Animals. They’re being ask to donate to a musician and his label for having made Feed the Animals, which they will gladly give you for free. In this context, Feed the Animals is about as illegal as any mashup some kid in his living room designed for his blog.

Now, I’m pretty sure this line of reasoning won’t hold up in court (open source software, for example, isn’t allowed to infringe on patents just because it’s free), but Gabriele is right that the freebie option (which is at full-quality 320kbps, by the way) blurs the line between commercial artist and basement teenager. Not that that stopped EMI with the Hi5 thing – but most people (and most record companies) would want to distinguish between the two. As I argued in the EMI/Hi5 post, user-generated content can be a valuable source of buzz. The question, here as with EMI/Hi5, is whether or not the potentially valuable product exposure outweighs the danger of setting precedents by turning a blind eye to third party profit.

-Nick