Black + white = The Grey Album DJ Danger Mouse combines Jay-Z and the Beatles and starts a legal firestorm BY CARLY CARIOLI

A week ago Tuesday, despite the threat of legal action, some 170 Web sites offered for download DJ Danger Mouse’s The Grey Album — an amalgam of the vocals from every song on Jay-Z’s The Black Album (Roc-A-Fella) remixed with music taken entirely from The Beatles (Capitol), a/k/a " The White Album. " At least 400 more Web sites were shaded gray as a sign of solidarity. " Grey Tuesday, " as it was called, was characterized by its organizers as an act of coordinated civil disobedience against the restrictive nature of copyright laws. EMI, which publishes the Beatles’ catalogue, called it " a serious violation of Capitol’s rights, " and cease-and-desist notices arrived on the doorsteps of the participating sites on February 23. Downhillbattle.com, the Worcester-based Web site that organized the protest, estimates that 100,000 copies of The Grey Album were distributed on Grey Tuesday alone — which likely made the " disc, " if only for a day, the #1 release in the country.

Worcester’s Holmes Wilson and Nicholas Reville founded downhillbattle.com last August as one of a growing number of Web sites devoted to toppling the five major labels’ grip on the music industry. The pair come from a background of global-justice activism — while a student at Brown University in 2000, Reville helped organize a collegiate sweatshop-monitoring consortium — and their criticism of music-industry practices is colored by a broader critique of corporate culture. The site offers T-shirts that read " Peer-to-Peer Kills Pay-to-Play " — a reference to the industry’s stated claim that downloading hurts record sales, and to the claim that the labels continue to monopolize radio airplay through payola — as well as stickers meant to be placed on major-label titles that read: " WARNING: Buying this CD funds lawsuits against children and families. "

Wilson is a Jay-Z fan, and in January, a friend e-mailed him about a spate of unauthorized remixes of The Black Album that had been circulating on the Web. Hip-hop and dance artists have long issued a cappella versions (often as B-sides) in order to encourage DJs to remix their singles. In the past, Roc-A-Fella had made a point of not releasing its material a cappella, but The Black Album is being marketed as Jay-Z’s swan song, and the release of the two-LP a cappella was widely seen as a parting gift to rap fans and producers. Although at least a dozen Black Album remixes would eventually flood the market, The Grey Album distinguished itself from the pack. In a matter of weeks, it jumped from an underground Web-only phenomenon — a disc lauded by hip-hop bloggers, traded on file-sharing networks, and available from a select few on-line DJ specialty shops — to a mainstream sensation, with press coverage on MTV, in the New York Times, and in the New Yorker. " It’s not just a mash-up, " says Wilson. " He’s really getting deep with pulling apart the sounds [of " The ‘White Album " ]. It’s a crystal-clear example of an album for people who are suspicious of sampling to grasp what’s valuable about this new form. "

Sampling isn’t exactly new, but Holmes and Reville are relative newcomers to copyright law, and the two can sound a little naive. Their thinking on the issue is heavily influenced by the writings of Stanford Law School professor Lawrence Lessig and what Robert S. Boynton in the January 25 New York Times Magazine referred to a couple months ago as the " Copy Left " — a group of intellectuals and activists who argue that the recently tightened copyright law will have far-reaching effects on free speech, creativity, and commerce. " In less than a decade, " Boynton wrote, the " liberating potential of the Internet seems to have given way to something of an intellectual land grab presided over by legislators and lawyers for the media industries. "

People in the music industry would " rather keep the focus on their stars and the focus off the way the business works, " says Holmes. " But file sharing has pulled them out of the shadows. "

On the surface, The Grey Album seems a poor launching pad for a copyright crusade. The allowance in copyright law for fair-use provisions makes for many gray areas. But unlike Negativland, the avant-garde group who landed in court over " U2, " their 1991 sound-collage appropriation of " I Still Haven’t Found What I’m Looking For, " Danger Mouse does not claim any fair-use protection. Although he admitted to pressing about 3000 " promotional " copies of the disc, The Grey Album was intended to be a limited-edition collector’s item, not unlike countless other white-label releases that proliferate on-line and trickle into such DJ-boutique specialty shops as hiphopsite.com, fatbeats.com, and turntablelab.com. " That’s one of the things I struggled with, " he told the New Yorker. " I told myself, ‘Never will this come out.’  " Last month, when EMI ordered him to cease and desist from distributing The Grey Album (the action that prompted downhillbattle.com to take up the cause), the artist humbly complied.

Still, the disc has become a flash point for file sharing and copyright activists such as illegal-art.org. One of the first sites to offer The Grey Album for download, it cited the disc as an example of " what is rapidly becoming the ‘degenerate art’ of a corporate age: art and ideas on the legal fringes of intellectual property. " And downhillbattle.com is arguing a fair-use exemption for Grey Tuesday. " If we get taken to court, " says Wilson, " I’m going to get up and say that copyright is not created by corporations to protect their interests: it’s created by the public. And for the public to make informed decisions about copyright law, people need to hear the stuff the current system suppresses. If you can’t hear it, then you don’t know what we’re missing. "

" Anyone who is claiming that this is fair use obviously does not have a grasp of the copyright statute and probably hasn’t read it, " responds EMI spokesperson Jeanne Meyer, though she declined to say whether EMI will pursue further legal action. Meanwhile, hinting at the enormous complexity of copyright law, the Electronic Frontier Foundation, a digital-rights advocacy group, suggested in a recent post on its Web site that EMI might be forced to take the case to state courts, arguing that no federal copyright protection exists for recordings made prior to 1972. " The White Album " was released in 1968.

DANGER MOUSE, a/k/a Brian Burton, is an indie-hip-hop producer who’s won acclaim for his work on Jemini’s 2003 Ghetto Pop Life (Waxploitation); before becoming a DJ, he worked in a record store alongside members of the Beatles-worshipping indie-rock collective Elephant 6. He has issued a press release saying he’s " flattered " by Grey Tuesday’s efforts; in the same release, Waxploitation CEO Jeff Antebi called The Grey Album a " watershed moment " for issues of downloading and copyright. " We are seeing the rapid speed of peer-to-peer [file sharing] come head to head with a rabid, worldwide consumer demand for forbidden fruit. The Internet makes it almost impossible to hold things back from the marketplace. "

The Grey Album thus joins a growing pantheon of critically acclaimed meta-albums that have proliferated in the age of file sharing, such as Soulwax’s 2 Many DJs and the Philadelphia DJ Diplodocus’s Hollertronix — both of which are based on the recombinant possibilities of dissimilar pop songs. These are discs that make prominent use of copyrighted sound recordings — more than a brief sample of another artist’s work, but something less than the entire song — without the artist’s permission. And they represent a new sort of product, one that the recording industry is singularly ill-equipped to exploit. In fact, as Antebi points out, part of the appeal of these albums lies in that they are the very definition of the kind of music it has become impossible for labels to release. As much as their artists, the major labels are slaves to copyright restrictions. EMI reminds us that it isn’t an enemy of sampling: its artists include Fatboy Slim, the Chemical Brothers, and even mash-up king Richard X. The problem in this case is the Fab Four: no one has ever succeeded in licensing a Beatles sample. Would Capitol have any more luck persuading the Beatles’ various estates and publishing companies to authorize The Grey Album? If it did, would Roc-A-Fella consent to having Capitol release a competing version of its biggest star’s final album? And if the two labels went halfsies, would Danger Mouse ever see a dime more than he’s seeing right now?

Neither are the Copy Left’s copyright reforms a foolproof answer. Sampling popular songs may be expensive, but you can argue that cost has forced hip-hop producers to become more resilient. The best producers pride themselves on rescuing stunning instrumental moments from obscure, cheaper-to-sample recordings, rehabilitating non-hits into hits. Cheaper, more abundant sampling might just as easily lead to an amusing rash of hybrid novelty songs or a string of rehashed karaoke-style pop hits, like Puff Daddy’s " I’ll Be Missing You. "

While the Copy Left fights for less restrictive copyright laws and the music industry holds its ground, artists are embracing the Internet’s gray-market electronic underground in unauthorized remixes, mash-ups, and DJ mixtapes — a realm that has proved impervious to lawsuits, and that has grown up in the fertile ground between what is possible and what is legal. By releasing an a cappella version of The Black Album, Jay-Z willfully disseminated a kind of musical open-source code — an invitation to customize and improve upon the original. In this, he may have been influenced by his arch-rival. The release of the a cappella version of Nas’s God’s Son (Columbia) inspired a then-unknown producer called 9th Wonder to craft God’s Stepson, which is regarded as the first album-length remix to get a gray-market release. The disc became an underground sensation; Jay-Z was so impressed, he asked 9th Wonder to produce a track on The Black Album: " The Threat " is built on a sample of R. Kelly’s " A Woman’s Threat. " After some deliberation, 9th Wonder recently joined the Black Album remix craze with his own entry, Black Is Back.

The Copy Left argues that the public wants to interact with its products instead of being passive consumers. And the trend to unsanctioned customization isn’t off in the future: it’s the way things happen now, on DJ mixes and on the Web, on suburban home computers and on street corners. One reason God’s Stepson caught on was that it replicated the sound of Illmatic (Columbia), Nas’s first and most popular album. And downhillbattle.com’s latest endeavor reflects where things might go from here: the site will soon offer The Black Album Construction Kit, a CD-ROM featuring the Jay-Z a cappella and eight of the most popular remixed versions of The Black Album, along with an open-source audio editing program enabling you, Wilson says, " to make your own Jay-Z mash-up. " The disc will also offer an open-source graphics program for creating cover art and links to sites on the free-software movement, copyright law, and music activism. Legal representation sold separately.