PMO - Rambarran - 99 Problems

‘99 Problems’ but Danger Mouse Ain’t One: The Creative and Legal Difficulties of Brian Burton, ‘Author’ of The Grey Album
Shara Rambarran
Assistant Professor, BISC, Queens University, Canada

‘...if it wasn’t for the technology we wouldn’t be having this conversation…’
(Tim Simenon n.d) [1]

In 2004, a major record company and associated parties tried to censor Brian Burton (also known as Danger Mouse) and deny his authorship of The Grey Album, a mash-up of the Beatles’ White Album and Jay-Z’s Black Album. The article describes how The Grey Album was distributed on the Internet and how it was illegally downloaded by non-paying consumers. More specifically, it examines the reasons why EMI and Capitol Records, the owners of the Beatles’ White Album, tried to halt the distribution of illegal copies of The Grey Album by asserting that Burton did not seek copyright permission of the White Album. The reaction to the resulting confrontation between Burton and EMI is also analysed by exploring how consumers and supporters of The Grey Album opposed EMI’s instruction to destroy and stop downloading further copies by staging a one-day cyber protest. Copyright is the vital nexus of the argument between Burton, consumers and EMI, therefore, this article reviews this issue and other legalities affecting all parties involved, and explains why EMI could not legally present a court case in North America.

To fully appreciate the cultural significance of The Grey Album, it is important to consider this legal questioning of authorship in relation to aesthetic elements of authorship, not least the various postmodern devices that are embodied in the music: double codings of elements displayed in the socio-cultural and musical context of the Beatles and Jay-Z; deconstruction of The Grey Album; and its musical style, the mash-up. This section argues why Burton should be acknowledged as the author of the innovative The Grey Album via a close reading of the song ‘99 Problems’, which will demonstrate Burton’s skills as a creator, indeed the originator of a ‘new’ artwork. Finally, we will consider the aftermath of The Grey Album and the role the album played in shifting both legal and aesthetic concepts of authorship: musical developments in the remix culture; revisions of digital rights including EMI’s easing the access of copyright; and surprisingly, how this event provided Burton with a successful career as a music producer.

The Development of The Grey Album

Since the 1990s, information and communication technologies (ICTs) have proliferated rapidly due to the digital use of MP3s, computer software, and the Internet. In particular, music technology has become more accessible, and anyone can make music in the current ‘rip, mix and burn’ culture (Lessig 2004, 24), whether or not formally trained as a musician, composer or producer. The music created (especially if sampling is involved) may incur unexpected legal and aesthetic consequences, thereby calling into question the creativity and authenticity of the product.

In 2003, the rap and hip-hop artist Jay-Z (real name Shawn Carter) marketed his purported ‘final’ album (he ‘resurrected’ his musical career in 2006). The Black Album was saturated with input from significant producers, such as the Neptunes, Timbaland and Rick Rubin. To coincide with the album, there was a ‘final’ music video, a ‘farewell’ tour (Fade to Black) and an autobiography (The Black Book). There was also an a capella version of the Black Album as an invitation to professional and amateur DJs, musicians and producers to remix his work. In 2004, a daring idea that occurred to one of them was to make a collage of Jay-Z’s and some of the Beatles’ work; this person was, of course, Brian Burton. At this time, Burton was beginning to gain attention as an underground DJ and hip-hop producer and was signed to Waxploitation Records.

After genre-blending or mashing-up the Beatles’ eponymous 1968 album (better known as the White Album), and Jay-Z’s Black Album, the original title for the resulting album was The Black-White Album, but subsequent media interest was responsible for a change of title, and it became better known as The Grey Album. Burton was aware that he needed permission from EMI and Capitol Records to use the Beatles’ sound recordings (Howard-Spink 2004, 2), but he strongly suspected that his request would be rejected. Consequently, he kept his underground project’s low profile by discretely sharing his ideas only with DJs and musicians. Yet after pressing and distributing 3,000 copies on CD, Burton’s work appeared on the Internet (presumably uploaded by fans) and was swiftly consumed by the public. Due to the easy access of the illegal download, which occurred mainly through peer to peer file-sharing networks, the media, including both music and news press such as The New York Times and Rolling Stone, obtained copies of the album and praised it extensively.

After being quoted as saying that ‘every kick, snare, and chord is taken from the Beatles’ White Album and is in their original recording somewhere’ (United Press 2004), Burton was challenged by a ‘cease and desist’ letter from EMI. The record company stated that Burton had not obtained copyright permission for use of the Beatles’ works, and ordered him and distributors to destroy all copies. Burton countered that his project was an artistic expression of his admiration of the Beatles and Jay-Z (Waxploitation 2004), but regardless of that, he obeyed EMI’s instruction. The supporters of the project, however, opposed EMI’s instruction, arguing that the record company had failed to see the creative artistic value of the music and the benefits that it could bring to the business (for example, earning high income from the legitimised product and to contemplate whether Burton could be an ongoing asset as a producer in the industry). In particular, an Internet music activist and non-profit organisation called Downhill Battle decided to stage its views by organising a one-day cyber protest, which became famously known as ‘Grey Tuesday’. This protest exclusively proved to be an influence in highlighting awareness of The Grey Album, and enhanced activity in cyberactivism which will now be explored.

‘Grey Tuesday’ and Cyberactivism

‘Grey Tuesday’ was not a typical urban protest and it did not include a rally or a sit-in demonstration; rather, ‘Grey Tuesday’ took place in cyberspace. Cyberactivism, has been defined by Michael D. Ayers (2006) in connection with ‘Grey Tuesday’ as a ‘day where symbolic, cultural, and political protests are conveyed in the virtual’ (Ayers 2006, 127). This particular cyberactivism was symbolic because ‘Grey Tuesday’ brought global awareness on concerns by supporters, which led to a cyber protest. Although it would seem that the issues of The Grey Album would most likely concern the value of the music, Ayers pointed out that ‘Grey Tuesday’ was also a cultural and political protest. It was a cultural protest because it could be assumed that the virtual participants of ‘Grey Tuesday’ may well have consisted of any cultural and social background.

There are different methods of presenting a protest in cyberspace including websites and weblogs. As well as going to the websites directly to download The Grey Album, the protestor can also go and visit a weblog, gain more information, click on the hyperlink to retrieve more consistent information and download the album. All these pathways would have counted in the monitoring of the number of ‘hits’ or downloads that took placed on ‘Grey Tuesday’. The accurate number of downloads would have been recorded instantly as it was in ‘real time’ online, a time saving procedure that does not depend on paper or physical activities which would have made the time for collecting and presenting results much longer.

There are also different types of actions to consider in cyberactivism. The categories that apply to ‘Grey Tuesday’ are ‘Non-Violent Direct Action’, ‘Mass Virtual Direct Action’, and ‘Electronic Civil Disobedience’ (Jordan and Taylor 2004, 68-79; McKay 1998, 15; Vegh 2003, 72). The term ‘Non-Violent Direct Action’ (NVDA), refers to a non-violent protest which directly addresses the issue to the bodies that the activists are protesting against. In cyberactivism, the ‘violence’ that can take place is to send viruses, break into or parody the targeted websites (known as ‘hacktivism’). However, one needs to be responsible and vigilant when participating in a NVDA protest as such action may draw consequences for the participant (McKay 1998, 18). On ‘Grey Tuesday’, the participants involved were all at risk of being sued by EMI (Patel, 2004). Most of the participants who uploaded the album would have also received cease and desist letters from EMI (ibid.). Regardless of the warning, the participants took responsibility for the consequences that would have occurred if EMI had decided to take action.

‘Grey Tuesday’ occurred on Tuesday 24th February 2004 when cyber activists uploaded The Grey Album onto their websites or weblogs in order to allow others to download it. An alternative action was to turn the colour of their web page grey for the day to symbolise the album (Ayers 2006, 131–132). Prior to the event, many of the participants (including Downhill Battle) received ‘cease and desist’ letters from EMI and Capitol Records. Many of the participants also received Digital Millennium Copyright Act (DMCA) ‘take down’ notices from Sony Music and ATV Publishing. Despite the pressure from the record companies and publishers, over 200 websites participated, and more than 100,000 people downloaded The Grey Album on ‘Grey Tuesday’ (Patel 2004). The amount of ‘virtual’ downloads is ‘equivalent to more than one million digital tracks’ (Lim 2004, 372) and would have been comparable to the album achieving a number one position in the music charts, if it had been sold as an actual physical release (digital downloads were not introduced to the charts until 2005). Despite that, Burton still had to possibly deal with the legal consequences of making the album, which of course, involves copyright. The major concern was that Burton did not seek copyright permission to access and use the sound recordings of Jay-Z and more significantly, the Beatles.

Copyright

There are important reasons why Burton did not seek copyright permission: EMI would more than likely have prohibited the project, but if permission was granted, the cost of the licensing fee would have been too expensive for him. Another point to consider is the royalties that he would owe. The normal procedure of obtaining licences is to approach the copyright holder for the sound recordings and compositions. In brief, Burton would have to approach the copyright holder of the master rights (sound recordings), and the owner of the publishing rights (compositions). To gain a sense of the legal complications involved, the owners of the master and publishing rights are as follows:

EMI and Capitol Records (owners of the sound recordings on the White Album),
Sony Music and ATV Publishing (owners of the compositions on the White Album and Lennon and McCartney’s Northern Songs catalogue),
The Beatles and Apple Corps Ltd. (which may involve other channels such as the estates of Harrison and Lennon),
Harrisongs and Wixen Music Publishing (owners of George Harrison’s compositions),
Roc-A-Fella Records (owners of the Black Album),
Owners of the compositions on the Black Album.

If Burton was granted copyright access, the companies’ fees and royalties would have been expensive. Fredrich N. Lim (2004) argues that the copyright holder’s requests are not realistic as ‘most small artists such as Burton cannot afford the exorbitant fees required to sample copyright works of well-known artists…’ (Lim 2004, 377). Bill Werde of the New York Times, 25 February 2004, states that if Burton had copyright permission, it would have been normal for him to contribute more than fifty percent of publishing rights to the copyright holder. As there are many parties involved, Burton would have to contribute more than 100 percent of his publishing rights to those groups as well as paying for the licenses. To clarify, the legal set-up of publishing and licensing rights suggest that Burton would need to contribute a considerable amount of royalties and fees as there are so many parties involved. The only way that Burton could have avoided this situation was to interpolate or record cover versions of the Beatles’ songs, either by himself, or by hiring other singers and musicians.

Regardless of the musical direction that Burton would have taken to create The Grey Album, there was still a major barrier—EMI Records. There are conflicting research findings on whether EMI would have allowed Burton to make The Grey Album. The Senior Vice President of corporate communications for EMI (North American division), Jeanne Meyer, insisted that the company supports music sampling and that Burton never asked permission from them for copyright clearance (Ganz 2004; Moody 2004; Patel 2004; Romero 2004), which suggests that Burton may have had his request granted—if he had asked. It is known that the Beastie Boys were allowed to use five samples of the Beatles’ music in their 1989 album Paul’s Boutique (LeRoy 2006, 45-46). Reasons may include the fact that the album was also owned by EMI and Capitol Records, and that digital sampling was still young at the time; therefore, copyright restriction was not strict until the significant court case of Grand Upright Music, Ltd v. Warner Bros. Records, Inc. in 1991. The Beatles were no exception either, as they had debatably employed sampling or proto-sampling techniques with the analogue tape-looped technology used on ‘Revolution Nine’ (1968) and the cut ups of a Sousa march on ‘Being For the Benefit of Mr Kite’ (1967). They did not have to pay for sampling fees, however, since it was EMI’s material and thus belonged to their record company—yet, perhaps what counted most was that they were THE BEATLES.

Putting the Beatles aside for a moment, The Grey Album opens up other issues concerning copyright as explained by the Electronic Frontier Foundation. Also known as the EFF, this is a non-profit legal organisation of lawyers, policy analysts, activists and technologists, whose aims are to protect and defend artists and consumers who need legal representation for issues concerning digital rights (such as use of creations, inventions, free speech, privacy, consumer rights) (EFF 2004). The EFF paid particular attention to Burton’s case and presented a list of the parties involved in this debate:

Owners of the rights to the sound recording ("master") for the Beatles' White Album. That's EMI.
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.
Owners of the rights to the sound recording for Jay-Z's Black Album.
Owners of the rights to the musical works that appear on Jay-Z's Black Album.
And, possibly, the owner of the rights to The Grey Album (presumably DJ Danger Mouse).

(EFF 2004)

This list provides details on who owns which recording involved in The Grey Album and so confirms that EMI are not the only channel Burton would have to go through in order to seek copyright clearance. In US law however, federal copyright protection does not apply to sound recordings made before 1972; therefore, even though EMI owns the original sound recording, it is not protected under federal copyright, since the White Album was made in 1968 (EFF 2004). There are some states that have separate copyright statutes for sound recordings made before 1972, and there are some states that do not—such as California, where The Grey Album was produced (Lim 2004, 375). It is likely therefore that EMI could not have a case at all in the United States. Nevertheless, under current UK law, mechanical copyright protection (MCP) still applies to the White Album until the year 2018. Sony Music and ATV Publishing could have presented a case against Burton and supporters, as their ownership of the songs and music are protected under the federal law, depending on the quantity of the sampled work. For instance, the smallest sample (known as de minimis) appropriated in The Grey Album is not considered as infringement under the laws governing Fair Dealing (UK) or Fair Use (USA), unless a ‘substantial’ amount of samples was identified. The terms de minimis or ‘small snippet’ are misleading because regardless of how small or unrecognisable the sample is, it is still protected by copyright (Schloss 2004, 176): it is at the artist’s risk to not request a license from the owner (master) of the sound recording. Furthermore, the word ‘substantial’ is also ill-defined: this can certainly lead to complexities (whether it means quantatively substantial or qualitatively substantial). If Sony and ATV wanted a tight legal case, they would have to spend a considerable amount of time analysing which sections of Lennon and McCartney’s compositions were actually used and how they were used, and work out if a ‘substantial’ amount was sampled. Burton would probably be accused of copyright infringement for using a substantial amount of samples as Matthew Rimmer states a little naïvely:

The Grey Album is not a minimalist piece of sampling; on the contrary, it is a maximalist appropriation of the work of the Beatles and Jay-Z. It is doubtful that a court would dismiss the amount of copying of the artists as merely trifling. Indeed, it would be likely that The Grey Album would be considered to use a substantial part of the musical works and sound recordings. (Rimmer 2005, 44)

Rimmer’s statement encourages the notion that Sony and ATV had the right to take Burton to court and also the opportunity to decide whether or not to accuse the ‘Grey Tuesday’ protesters of copyright infringement. As mentioned earlier, many participants in the ‘Grey Tuesday’ action received cease and desist letters from EMI and Capitol Records. The participants were informed that if they distributed The Grey Album, they would be liable for copyright infringement because of wilful infringement, unfair competition and unjust enrichment (Jensen n.d).

The defence of the protesters would have been that they were protected by ‘fair use’ policy. This means that the protesters could argue that their intention of using The Grey Album was for non-profitable purposes only and to encourage receptiveness of Burton’s creativity. This is explained by the EFF:

The posting of The Grey Album is for a noncommercial purpose.
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.
A copyright owner is unlikely to license a work for use in a protest that is critical of the copyright owner itself.
The Grey Album is a transformative use of the White Album, not a wholesale copy.
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.

(EFF 2004)

Therefore, the ‘Grey Tuesday’ activists would have had a case to present, as they had a ‘credible fair use defence’ and it was in their interest to defend their opinion that The Grey Album should not be threatened or mistreated. Despite Sony and ATV not taking legal action, they did make use of the DMCA in their fight against copyright infringement. Some participants of ‘Grey Tuesday’ received the DMCA ‘takedown’ notice from Sony and ATV (EFF 2004). Participants were ordered to remove their posting of The Grey Album on their weblog or website. Failure to do this would mean that traffic to their site would be blocked, and they would be unreachable on search engines, such as ‘Google’.

Although Jay-Z and his record company were not legally involved in this debate, their views must not be overlooked. The genre of rap and hip-hop is popular partly because of its use of appropriating, sampling and remixing other recorded works. Copyright infringement has been a major issue in most cases of hip-hop (including other styles of music), and the resolutions do not always work in the favour of the accused artists.

There are three common ways of resolving copyright infringement issues. The settling of legitimate claims outside the court is the most popular solution, with De La Soul and their song ‘Transmitting Live from Mars’ (1991) being a prime example. The second way is to remove the sample from the song or the whole song entirely. The classic example is the Grand Upright Music, Ltd v. Warner Bros. Records, Inc. court case. The third way is to interpolate other songs, a common element in hip-hop. A significant example is Dr Dre, former member of N.W.A and now a well-known music producer, who is known for using interpolation, especially in his pioneering album The Chronic (1992).

The methods of resolving copyright issues may suggest that Jay-Z and Roc-A-Fella Records understood Burton’s situation and perhaps decided not to get involved. This suggestion is supported by academics such as Todd Boyd (2004) who stated that ‘Jay-Z […] claimed that it would be hypocritical to oppose remixing’ (quoted in Norman Lear Center’s meeting notes 2004). Nicholas Reville of Downhill Battle received feedback from Jay-Z’s record company about the album and announced, ‘[Jay-Z] loves The Grey Album and everyone at Roc-A-Fella loves the album. They haven’t intervened legally. They’ve been much smarter than EMI […] because I think they understand the issues more’ (Patel 2004). It is understandable why Jay-Z and Roc-A-Fella Records did not pursue a case against Burton, as they are very much aware that their music genre (rap and hip-hop) is known for its complications regarding sampling and copyright.

With the success of ‘Grey Tuesday’ and The Grey Album, there are other questions that need considering: To what extent was the success or notoriety of The Grey Album based precisely on its aura of illegality, on the simple premise that Burton did not have copyright clearance? One suggestion could be that because the album was originally an experiment, it would have been a ‘hit or miss’ situation, but it is likely that it would have received honourable recognition. The original idea of mixing two very well-known works is distinctive and it would not be surprising if other producers would have liked to create The Grey Album themselves. This is indicated by the reaction of hip-hop artist Bootie Brown, better known as ‘Pharacyde’: ‘Even if you didn’t hear the music, the idea of actually doing it and pulling it off I think it’s an incredible thing, it’s one of those things of damn, why didn’t I think of that?’ (quoted in Lowe 2006). Another point to consider for the favourable consideration of The Grey Album was the ‘Grey Tuesday’ protest. If the album was legally and commercially released, it would have increased profit and income for all parties involved (maybe not for Burton). Although Danger Mouse is not as popular as the Beatles, EMI were probably wary of losing profit if they did grant permission to him. But what if a popular artist such as Jay-Z had asked? Would the situation have been any different? Or what if a DJ remixed or sampled The Grey Album; would Burton receive royalties? Some of the questions may remain unanswered for now as no legal action was sought after ‘Grey Tuesday’. EMI announced that no damage was caused by this event (Howell 2006). Whatever its legal and aesthetic merits, Burton’s work had indisputably raised complex questions about authorship like no album before, and forced the industry and musicians to radically reassess their assumptions to this end. Inextricably connected with these legal matters are Burton’s postmodernist aesthetics, which include double codings and différance, and his deconstructive play. Indeed, these elements in combination suggest (perhaps ironically) Burton to be the author of The Grey Album.

Double codings and Différance

One underexplored area of Burton’s work is its generation of proliferating cultural ironies and uncertainties that maintain its active subversive status within musical culture. The Grey Album’s postmodern use of collage should be considered a celebration of two well-known records of different musical styles and eras. It should be admired for the technological manipulation of sound, and its play of oppositions and double codings, such as classic and contemporary, and analogue and digital music. Burton also employs a familiar trope of postmodernism in the combination of high and popular culture in popular music. I recognise that the use of these terms may be debatable here, but they relate to the Beatles’ artistic status being recognised and absorbed by the high cultural establishment at the time of their success (Sgt. Pepper received an Arts Council award, and Professor Wilfrid Mellers of the University of York championed their music). Although it may be argued that the Beatles included some postmodern features (or the groundings of) in their music, especially in their experimental albums (such as Sgt. Pepper, Revolver), they remain one of the bands situated within modernist ambitions in the popular music of their time (for other arguments on the Beatles and postmodernism, read Ed Whitley 2000). Jay-Z’s music has contributed to the awareness of social problems (by expressing views against crime and drug culture), and the style of the music (hip-hop) is postmodern (sampling and other elements), as heard and seen in popular culture.

While the obvious oppositions have been clarified between the Beatles (past, high culture) and Jay-Z (present, popular culture), there are other signs to consider such as the equal use of double coding. The Grey Album certainly appears to assume an equality between the Beatles and Jay-Z—but does it? To begin with, various assumptions and the relevance of the oppositions that lie within The Grey Album need to be explored. This section will attempt to show that the Black, White and Grey albums are forms of différance, a concept devised by Jacques Derrida. The musicians involved all have their own significant meanings, due to the historic circumstances in which those albums were produced. The very title of The Grey Album suggests the deconstruction of a black and white binary opposition rather than a synthesis. Grey challenges us to say at which point it might turn into black or, alternatively, white. The meaning of the grey is deferred; it is not simply a question of its differing from black or white, which is why Derrida’s concept of différance helps us to recognise the play of meanings. From a musical rather than a racial sense, the colours may possess symbolic reference to the musicians and music. Jay-Z’s Black Album signifies the death and the end of his persona: this is evident in his music video ‘99 Problems’, in which he acts out the story of his life before playing out his own death. It is interesting that Jay-Z’s record cover is in black and is thus a negative pastiche of the White Album, which is famous for its white record sleeve (designed by Richard Hamilton). While the Black Album signified the end of Jay-Z, the White Album signified the beginning of the end of the Beatles due to their solo projects and issues that arose during its recording. In 1967, the Beatles went to a spiritual retreat in Rishikesh, India, to escape from the pressures of celebrity and the psychedelic lifestyle; it was also known that the Beatles’ relationships with each other were deteriorating (Quantick 2002, 36-42). Despite the commercial success of the White Album, the album also represented the Beatles’ relationship as a band. The title of the album itself is significant as the colour ‘white’ in India can signify ‘death’, which supports George Harrison’s statement that ‘the rot had already set in’ (quoted in Lewisohn 1988, 163), marking the Beatles’ final years.

While the Black and White Album portrayed the ‘demise’ of Jay-Z and the Beatles, The Grey Album proved to be a challenging period in Burton’s musical career. The cover of The Grey Album (designed by the organisers of ‘Grey Tuesday’) paid tribute to both the Black and White albums by simple virtue of being grey. The album however, did not signify a particular element of Burton’s personal life; it was made in the age of digitalization, and it was an experiment. The outcome, however, did affect his musical career—whether he liked it or not. This time, indeed, could be considered the ‘grey’ part of his career, since his future was ‘unpredictable’—especially if he was to be sued by the owners of the White Album. While the concept of the colour and word ‘grey’ describes Burton’s unpredictable future in the music industry, the context of ‘grey’ also describes the current state of music as Ayers suggests:

Grey not only is a shade of black and white but it is also a descriptive term that signifies ‘fuzzy’ or ‘unclear’. The significance of calling the work ‘grey’ is an example of how this musical work makes a statement about the state of music in general. Genres are not cut-and-dried spaces, nor have they been historically. Often, music consumers pick and choose different genres to listen to, depending on one’s tastes. (Ayers 2006, 132)

Ayers brings awareness of how consumers’ tastes in music are not limited to one or few but many genres. For example, when jazz and jazz-related dance music (such as swing) first became popular in the early twentieth century, it was not difficult for the audience to ‘choose’ the kind of music they preferred to listen to. Today, styles and genres of music are so diverse that the choices seem unlimited. Because we now have access to all kinds of musical styles, most consumers can no longer define their personal taste in terms of one particular style: our sense of personal choice may be described as non-specific, or ‘grey’. As the term ‘grey’ questions the uncertainty of Burton’s career and music, The Grey Album continues to challenge his creativity by its genre, bastard pop, and the use of Derrida’s deconstruction, as discussed in the next section.

Bastard Pop and Deconstruction

The Grey Album is a type of ‘bastard pop’ (Morley 2003, 205), which is comprised of illegal music and uses unauthorised samples and does not operate from within an established record company. A more popular term for this style is ‘mash-up’ which became popular from 2000 (ibid.). A mash-up is when two famous records are mixed together and one song usually dominates the other. A significant highlight of a mash-up is when a capella vocals blend in with the ‘other’ music, as on The Grey Album. Accessing the ingredients of a mash-up is not difficult as it is very easy now to search for the original recorded vocals as well as the music on the Internet. As Morley suggests, ‘[a]ccess on the Internet to acapella [sic] vocals and instrumental backing tracks means that homebodies, who are all in the mind, can ignore legalities and logic and all manner of niceties and splice together any music that takes their fancy’ (2003, 205). Of course, if the potential musician is caught, as Burton was, they may have a warning presented to them for copyright infringement. Mash-ups however, have become popular and have been given exposure on television and radio, such as MTV and XFM. Because of the technology involved, Kembrew McLeod (2005) states that ‘mash ups couldn’t have happened without the digital distribution power of the Internet and file-trading networks such as Kazaa, Livewire etc.’ (McLeod 2005, 83).

Critics have frequently claimed that The Grey Album is a mash-up, but actually, its stylistic taxonomy definition is debatable. If the listener is unaware of the Beatles’ music then s/he would not be able to guess which song had been sampled. Most of the Beatles’ tracks on The Grey Album are not easy to identify, therefore, the album is perhaps more suited to the remix—which still maintains the idea that the album is a form of remixology. Kodwo Eshun (1998) explains that the words ‘remix’ and ‘remixology’ have not always been popular: ‘[it] is blasphemy for altering the tapes, for derealizing the realtime of the song’ (Eshun 1998, 160). From a creative sense, Eshun describes remixology as ‘the science of the sequel and the art of the drastic retro fit, the total remake, the remodel’ (1998, 74). Following Eshun, it is argued that The Grey Album is the sequel to the Black Album and White Album, and an art of the ‘drastic retrofit, the total remake’, ‘the remodel’ and a ‘reincarnation’ (1998, 165).

To create The Grey Album, Burton deconstructed the two albums. In Derrida’s words, such an activity becomes a ‘double writing […] a writing that is in and itself […] called […] a double science’ (Derrida 2004, 38). Burton took both albums apart (in particular the White Album) and analysed, dissembled and reconstructed them as a new listening experience. Deconstruction normally works within an opposition, an opposition in which one term tends to dominate the other. Derrida explains: ‘to deconstruct the opposition […] is to overturn the hierarchy’ (2004, 38). That may be disappointing to supporters of the autonomy of art, but one needs to realise that without the aid of the older work, the new product would never have come about. Because of the Beatles’ success, they represent the ‘hierarchy’ (in popular music), the controlling term of the opposition; therefore Burton ‘overturned’ their dominance musically by giving Jay-Z’s vocals priority. What is fascinating is that although Jay-Z maintains the lead role on The Grey Album, his vocals rely on the music of the Beatles for the remix to work—is the hierarchy (Beatles) secretly dominating the opposition (Jay-Z) which may contradict Derrida’s theory of deconstruction? No. Deconstruction is an on-going and almost improvisational (if not entirely spontaneous) process. McLeod explains that when you deconstruct a text, ‘[it] cannot really be understood in the abstract because it is first and foremost an activity’ (2005, 84). Therefore, when Burton made the album, he may not have realised how peculiar it was that Jay-Z’s vocals relied on the Beatles’ music in a deconstructive manner.

Deconstructing and remixing other people’s works tend to bring out further issues when questioning creativity, and that is authorship—an on-going issue in this argument.

Authorship

Common sense dictates that Burton is the ‘author’ of The Grey Album, but when sampling and copyright issues are involved, this becomes less certain. Derek B. Scott (1998) explains that certain types of postmodern popular music raise questions about the actual authorship of the product, especially if the music is designed creatively using music technology ‘which allows existing sounds to be recorded and reused or manipulated at will [and has] a major impact on ideas of originality, creativity and ownership’ (Scott 1998, 144). For example, when you hear a song that has simply been remixed, you may think of the original artist, or, if you hear a song that has been cleverly remixed, you may want to know the creator of the ‘new’ record. It is arguable that The Grey Album belongs to Jay-Z; after all, his vocals are evident from start to finish. Alternatively, it could be argued that it belongs to the Beatles because it is based on their music. Yet, Burton’s creation is a form of improvisation and the product bears his name and musical fingerprints. The DJ is an instrumentalist, and has the ability to improvise when creating music. The techniques would mainly be based on technological manipulation (sampling, beat-matching, mixing and scratching records as examples). Composing and improvising music is developed from the individual’s own mind, in other words, the composer does not simply borrow other music to insert in his or her composition; thought and passion would have been carefully considered on why such motifs, samples or techniques are used. It is important to understand that improvising, composing, writing and other creative acts are influenced by (traditional) past sources and this could indicate that there is no such thing as authorship. There should be however, a degree of ownership of a product that should be recognised or honoured. Although Roland Barthes claims (in his famous essay ‘The Role of the Author’) ‘the writer can only imitate a gesture that is always anterior never original’ (Barthes 1977, 145), Michel Foucault’s response in ‘The Death of the Author’ contends that regardless of any work produced, the text ‘must be received in a certain mode and that in any given culture, must receive a certain status’ (Foucault 1986, 107), suggesting that there should be a limited sense of authorship. The White, Black and Grey Albums were made and released at different times and in quite different social and cultural contexts. Only the Black and White Albums gained a ‘certain status’ with their established authors (Jay-Z and the Beatles). The author of The Grey Album should, from a Foucauldian perspective, be ‘a name [who] permits one to group together a certain number of texts, define them, differentiate them from and contrast them to others…it establishes a relationship among the texts’ (Foucault 1986, 107). In this case, Burton could be regarded as the author because he was responsible for blending these two works of different genres and bringing out a refashioned awareness of their music. What is also important about Jay-Z’s and the Beatles’ works is that ‘they are unique [and] have produced something else: the possibilities and rules for the formation of other texts’ (Foucault 1986, 114), meaning that the combination of styles has produced a further progression of the remix—the mash-up. The Grey Album should also be understood as an illustration of ‘the way you pick up language from other writers [and] remake it as your own’ (Miller 2004, 57), which links to the earlier discussion on improvisation. The album is certainly controversial, since Burton put apparently incompatible elements together by means of the digital technology that had only recently made it possible. Therefore, it is fair to say that the careful intelligence controlling this intertextual combination of two famous records should allow Burton to be recognised as the author of The Grey Album thus forcing a rethink of traditional assumptions.

To express further support on Burton’s role as the author of The Grey Album, the following section musically interrogates one of the album’s tracks, ‘99 Problems’. The analysis presents how Burton creatively remixed two incompatible pieces of works together and transformed them into a new piece of music.

Musical Analysis of ‘99 Problems’

The most interesting piece of music to emerge from The Grey Album is ‘99 Problems’. The track, a mash-up of Jay-Z’s ‘99 Problems’ and the Beatles’ ‘Helter Skelter’, was Burton’s most challenging song to mix. Burton used to employ a basic set-up with an 8-track and a mini-disc to create the final mix. The production of The Grey Album however, entailed a basic set-up of a computer with Sonic Foundry Acid Pro software (now xPress), Pro Tools for the final mix, and computer speakers as monitors (O’Connor 2004). Burton spent two-and-a-half weeks in his bedroom to create The Grey Album. He had listened to the White Album four times searching for music he could use (Greenman 2004). To avoid mixing records together without any thought or passion, Paul D. Miller (aka DJ Spooky That Subliminal Kid), in his book Rhythm Science, advises that the mixing ‘should be really wild…anything else is boring’ (2004, 24). Miller’s comment applies to producers and DJs who want to gain a good reputation within the music community and industry. His comment can also reflect Joseph Schloss’s concept that choosing and manipulating samples ‘is an opportunity to display one’s skills as a producer’ (Schloss 2004, 149). This proved to be challenging for Burton, as he had to be careful not to create a mix that would disrespect the Beatles, Jay-Z and their supporters, as well as ruining his chances of becoming a name producer. Although Burton lists the Beatles and Jay-Z as his favourite musicians, he certainly took a few risks when creating the album, particularly ‘99 Problems’. To illustrate, the use of ‘Helter Skelter’ is a significant Beatles track due to its hard rock characteristics, being perhaps the only song from their music catalogue that represents this style. Therefore, Burton had to be cautious about which segments of ‘Helter Skelter’ would act as samples, and how the samples would interact with each other, including Jay-Z’s vocals.

On ‘99 Problems’, there are five distinct samples borrowed from ‘Helter Skelter’: backing vocals, bass guitar, lead guitar, unidentifiable high pitch sound and drums. The first step that Burton had to do was to beat-match Jay-Z’s vocals and the music of ‘Helter Skelter’. Burton explained: ‘It would have been easy to slap the vocals over music of the same tempo…but I wanted to match the feel of the tracks too’ (Greenman 2004). The original tempo for Jay-Z’s ‘99 Problems’ was 95 bpm, and the Beatles was around 83 bpm. Burton’s version kept Jay-Z’s tempo, and increased the tempo of ‘Helter Skelter’ while retaining the original pitch. With a tempo increase, the pitch would also be expected to shift, but one of the features of ACID software is that it keeps the original key at any given tempo, otherwise known as time-stretching. Unlike the other tracks on The Grey Album, a problem that Burton encountered was the rhythm on ‘99 Problems’. It is the norm to have drums to set the tempo and carry the rhythmic structure of the piece (especially in hip-hop music), but the technique of ‘locking up’ a beat (making or sampling a breakbeat pattern for looping) from ‘Helter Skelter’ was tricky for Burton. The reasons for this may be that the drums on ‘Helter Skelter’ have a straightforward 4/4 drum beat throughout the song, and that the simple drum pattern is not clear enough to sample—as the drums were overpowered by the lead vocals, bass and guitars. To overcome this problem, the bass line keeps ‘99 Problems’ in time. The short bass riff is sampled from the first verse of ‘Helter Skelter’. The original bass riff on ‘Helter Skelter’ stands out because it has been doubled (one track on normal level, and the other set in high treble which makes the bass sound louder and sharper). Burton manipulated the sample by boosting the low pass filter (to remove the treble effect on the bass as well as diminishing the rest of the music and unwanted sounds), and by compressing it for the bass to sound fuller, groove-like and louder. The bass groove repeatedly finger picks the note E, acts as a ‘loop’ and more importantly, accents the beat to keep ‘99 Problems’ in time.

Although ‘99 Problems’ is carried by the bass line, there is a non-overpowering drum pattern. As previously mentioned, it is difficult to sample a drum fragment in 4/4 time. Burton did create, however, a fresh drum pattern based on samples taken from ‘Helter Skelter’. Burton sampled a part of a very short and clean drum fill at the end of the first or second chorus (maximum of four hits), and individual drum sounds (bass/kick, snare, tom-tom, hi-hat, crash cymbal). After applying compression and low pass filter on the drum sounds, Burton created a simple rhythmic and timbral breakbeat to compliment (but not overshadow) the bass line. Burton also used the Beatles’ harmonies as backing vocals in certain parts of ‘99 Problems’, especially in the choruses. The ‘ahh’ sample has been manipulated with compression and the high pass filter (to drown out the bass and drums), to provide a bright and crispy effect to the vocals. Another sample used is a dynamic high pitch sound that occurs throughout ‘99 Problems’. It sounds like an alarm, similar to a klaxon, and is heard at the end of each chorus on ‘Helter Skelter’. To maintain its rock element, as in the original version, Burton sampled lead guitar fills from ‘Helter Skelter’, and added them to appropriate parts of the music, fill-in sections and to support Jay-Z’s vocals. The original lead guitar sample has a descending scalic sequential pattern and has two roles in ‘Helter Skelter’: to feature as the ‘response’ to the lead vocals (‘call’), and to represent the helter skelter’s slide. In ‘99 Problems’, the high pass filter is applied to the lead guitar parts to filter out the bass, drums and other instruments to achieve a clearer sound. Although the five samples (bass, drums, ‘ahh’, high-pitch sound and lead guitar) are the main elements of ‘99 Problems’, there are other samples used. These layers of samples are evident at the start and end of ‘99 Problems’, when Burton uses parts of the original and remixed tracks from both sources to underlie the music, employing a high pass filter.

We may analyse the first verse and chorus to acquire an idea of how the samples are layered in ‘99 Problems’. The introduction begins with the hook (or chorus) of ‘99 Problems’. The style of the vocals is Sprechstimme and is supported by the ‘ahh’ sample (backing vocals of the Beatles) on the words ‘99 Problems’ (0 mm 03ss 350ddd - 0mm 05ss 980ddd). The bass line sample enters when verse one starts (0:06.000). As mentioned earlier, the bass line is structuring the rhythm and keeping the music in 4/4 time. The bass achieves this by accentuating the first and third beat of each measure (or bar) in swift quaver movement. The solo feature of the bass helps to build the music until the drums and the lead guitar enters at the end of the line ‘I got the rap patrol on the gat patrol’ (0:10.980).

The bass and drums are then heard (0:13.590), which provides the core music of the song. A hint of the ‘alarm’ sample (high pitch sound) is heard at the end of line eight (‘You’d celebrate the minute you was havin’ dough’), and is quickly and loudly heard in the following line (‘I’m like fuck critics, you can kiss my whole asshole’, 0:21.730-0:23.880). At this point, the alarm is the only sample used (there is no bass and drums), and is followed by a quiet drum fill. This is followed by the ‘ahh’ sample only which helps to make the line ‘If you don’t like my lyrics, you can press fast forward’ stand out (0:23.920). The bass and drums return in the line ‘Got beef with radio if I don’t play they show’ (0:26.004), and continues to provide the music until it is replaced again by the alarm sample in the line ‘Well I don’t give a shit, SO!’ The bass and drums returns and are joined by the alarm in the line ‘so advertisers can give ‘em more cash for ads, fuckers!’(0:35.680). This is followed by guitars and drums (no bass) in line fifteen that signifies the bridge of the song. Towards the end of the first verse, the main hook of the song is supported by the samples ‘ahh’ (‘I got 99 problems, but a…’, 0:44.660), alarm only (‘bitch ain’t one, hit me!’, 0:45.953), which is followed by the lead guitar and a drum fill which leads to the chorus. The chorus includes the ‘ahh’ sample which supports the words ‘99 Problems’ which is musically responded by the lead guitar (‘bitch ain’t one’, 0:48.374 - 0:49.404 and 0:51.504 - 0:52.224). The drum and bass supports the second line of the chorus (‘If you havin’ girl problems I feel bad for you son’), but vanishes when the ‘ahh’ sample returns to support the main hook of the chorus (‘I got 99 Problems, but a bitch ain’t one’). The chorus ends when Jay-Z shouts ‘hit me!’ with no musical backing (0:56.680 - 0:57.130).

The layering of the samples is generally the same throughout the song, and audio-wise (as opposed to technicality), is not musically challenged. It should be noted however, that the ‘ahh’ and alarm samples do have prominent roles. As mentioned earlier, the ‘ahh’ sample provides the backing vocals (almost in a cappella) on the words ‘99 Problems’ which helps the hook stand out. The alarm sample features throughout the track and tends to highlight specific words (mainly derogatory terms) or expressions to support Jay-Z’s emotion in the song. Although the samples may sound simple in the recordings, the musical and technical arranging of the samples and song would have been time consuming and challenging for Burton. While the legal complications on ownership will permanently be debated, the artistic and musical delivery of the project should never be overlooked. The careful arrangement, rearrangement, deconstruction and the individual’s musical input entitles Burton to be considered as the author of The Grey Album. After all, it was Burton’s concept and vision of creating and transforming of what would have been considered as two incompatible works into a new musical work, resulting into a remarkable listening experience.

Conclusion

The topics I have discussed have shown how Burton and The Grey Album generated both positive and negative outcomes on issues of copyright, technology, creativity, and authorship. In a legal sense, Burton should have gained copyright permission; but, knowing the likely outcome of such an application, we might now have been in the position of never having heard the results. It is intriguing that successful mash-ups and other forms of remixes were introduced after the awareness of The Grey Album. David Bowie held a competition based on mashing up his album Reality (2003). The winner was to have the track featured on an Audi car commercial (Blake 2007, 122-123; Howell 2005, 28). A CD-ROM titled ‘Jay-Z Construction Set’ was released on file-sharing networks to encourage more remixes of the Black Album (McLeod 2007, 154). More importantly, in 2004, WEA records released a live mash-up album of Linkin Park and Jay-Z. As ‘Grey Tuesday’ was a cultural protest to call for a change in copyright and to allow reasonable access to music, this episode could have also been seen as an unusual marketing tactic—without the aid of the music industry, but even so, this day was a success and EMI and others would have benefited from The Grey Album, as the 100,000 downloads on ‘Grey Tuesday’ showed. Another point to consider is whether or not the Beatles really oppose the use of samples from their compositions? There was no reaction from the remaining members of the Beatles about The Grey Album until 2011 when Sir Paul McCartney finally revealed that he is a supporter of sampling, and more importantly, Burton’s creation (Semtex 2011). Therefore, if McCartney approved, then why were EMI at first being uncooperative with Burton and the supporters? As suggested by David J. Gunkel it is possible that EMI the ‘traditional powerbrokers […] now co-opt the revolution and transform the innovation to serve their own interests’ (Gunkel 2008, 490), as they unexpectedly brought more awareness about making copyright permission accessible, 1) as a consequence of their first legal mash-up album and, 2) through their decision to be the first to sell MP3 downloads free of Digital Rights Management (DRM). There is still however, hesitation from EMI to authorise sampling of the Beatles’ music. In autumn 2007, the Wu Tang Clan was approved by Apple Corps Ltd. and the Harrison Estate to interpolate a song from the White Album (Montgomery 2007a)—it was rumoured that the hip-hop group’s original request to sample the song was rejected (Montgomery 2007b). If Wu Tang Clan’s request were to be granted, it would be interesting to hear how the deconstructive play would operate in the consequent music. In other words, would the Beatles’ music be placed in an unstable hierarchy in the opposition with hip-hop? This brings the interesting possibility of the Beatles simultaneously depending upon and supporting the ‘lower ranked’ artist. In the former possibility, the Beatles would be, in effect, parasitical upon Jay-Z (with Burton’s help) to conduct the music to younger generations who would not otherwise consider listening to their music. Indeed, this combination and deconstruction of two opposites allows an on-going process of producing multiple and interchangeable meanings from the (musical) text to reactivate what is inert canonical music for current listeners. Through the deconstructionist method, the listener is exposed to other musical styles, who may then want to learn and appreciate its sonic and socio-cultural features. This is certainly evident today, especially when producing and listening to popular music, as demonstrated in Bastard pop.

The current familiarity of Bastard Pop and the use of inexpensive technology, mean that people will find it easier to sample music of any style. Hopefully, Burton will be recognised as the author of The Grey Album since he blended two well-known works, which was described by Laura Gitlin of Rolling Stone magazine on 5 February 2004, as ‘an ingenious hip-hop record that sounds oddly ahead of its time’. The Grey Album also brought more Beatles and Jay-Z fans for both types of the music it referenced and ‘both expressed admiration for the project’ (Demers 2006, 141). As Damon Dash, head of Jay-Z’s record label, said: ‘I think it’s hot. It’s the Beatles. It’s two great legends together’ (Moody 2004). [2] Despite the concerns that Burton encountered, he has become a popular producer and DJ in the industry. For example, Damon Albarn of Blur, was so impressed with Burton’s skills that he approached him to produce the Gorillaz’ second album Demon Days (2005), which is, ironically, owned by EMI Records. [3] Burton has proven that The Grey Album is a powerful record and, as he said, ‘it may get me into trouble, but if I had thought about that I would never made what I thought turned out to be one of the best things I ever did’ (Graham 2004). [4]

Notes

[1] Tim Simenon of Bomb the Bass was referring to the creative studio technology that contributed to his success as a DJ and producer. This quotation originally appeared in Future Music magazine in the early 1990s, and was confirmed for me in personal email correspondence with Simenon in 2010.

[2] In 2012, The Grey Album was remastered by sound engineer John Stewart and was uploaded on the file hosting website MediaFire (Fact, 2012). At the time of editing this article, there is no immediate response or reaction to this album from the industry, the public and Brian Burton.

[3] Burton was drawn into another legal dispute with EMI in 2009. The record label refused to release Dark Night of the Soul, a collaboration with David Lynch and Sparklehorse’s lead singer Mark Linkous. Instead, Burton released the album himself as a limited edition CD package (which included a photograph book and a blank CD). The purpose of the blank CD was for the user to illegally download the tracks and burn onto the CD. In spring 2010, when Mark Linkous committed suicide in March, EMI finally agreed to release the album (Fullerton 2009, 11). The album was released in July 2010.

[4] The author would like to thank Dr Christian Lloyd for his comments and criticisms of this article. The author would also like to thank Professor Derek B Scott for his support on earlier drafts of this paper. Finally, the author would like to sincerely express her gratitude and thanks to the peer reviewers and the editor Dr. Erik Steinskog for their helpful comments of this article. This article is dedicated to the late Professor David Sanjek.

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