RICK KARR: This is On the Media. I'm Rick Karr. Ten years ago Napster ignited the fight over what recording executives call piracy. Twenty years ago a lawsuit sparked a fight over another kind of so-called theft, what recording artists call sampling. What happened in 1989 submerged hip-hop into a kind of legal limbo from which some fascinating questions arise, such as why hasn't Gregg Gillis been sued? OTM producer Jamie York looked into that mystery and emerged with an update on the still-underground art of sampling.

JAMIE YORK: Gregg Gillis is now a professional musician. After years of being a Pittsburgh biomedical researcher by day and a deejay by night, he’s quit his day job and turned to deejaying full time, well, not exactly deejaying. Gillis, using the moniker Girl Talk, both performs and records songs that are built from the raw material of top 40 music. He’s sampling. Gregg Gillis.

GREGG GILLIS: I basically take preexisting pop songs and I cut them up and rearrange them and collage them together and try to manipulate them in a way that it becomes something new, try to make new pop out of old pop.

[MUSIC UP AND UNDER] It starts off with your drums from Roy Orbison’s Pretty Woman. Then you would hear a verse from a UGK song.

[MUSIC] And then you would hear a bass line from Spencer Davis Group.

[MUSIC] And then you would hear drums that I program myself with drum machines, and you would hear hand claps that come from an Afrika Bambaataa song.

[MUSIC] So it’s kind of like that, enough to get a pace of 300 songs in like 50 minutes or so.

[MUSIC]

JAMIE YORK: Gillis would be the first person to admit he isn't doing anything radically new. He’s just doing it as well as anyone out there.

JAMES BOYLE: I think you could say that a generation that had grown up playing with samples was eventually going to find its master impresario.

[MUSIC CONTINUES/UP AND UNDER]

JAMIE YORK: James Boyle is a law professor at Duke.

JAMES BOYLE: What he did was kind of different in that he was doing it, first of all, from a laptop, so there’s just something so wonderfully sweet and nerdy about watching a sweaty guy with his shirt off playing the track pad of a laptop, with a complicated music sampling program on it, while hordes of screaming women besiege him from the sides. I think this is every nerd’s dream come true. So Gillis, I think, moves this to the next step, able to just tickle the ears of his listeners. They're like, oh, I love that beat, and then something else would come. And they're, like, wow, they're really the same, they fit together. That was really the key to the success of the art form and made him really this extraordinary success, first, I think, largely on college campuses and then way beyond it.

[MUSIC/MUSIC UP AND UNDER]

JAMIE YORK: Skills aside, part of the enormous attention the media has paid to Gillis is because he may very well be breaking the law, a law that was supposed to be established around sampling nearly 20 years ago. To explain why he takes the risk, we go where Gillis first got his taste for sampling.

GREGG GILLIS: I grew up listening to a lot of hip-hop, so it’s like if you listen to Public Enemy, Bomb Squad Production, if you hear hundreds of samples kind of coming and going, and I like that whole aesthetics, like a dense wall of rhythm. And it just has this energy to it.

[MUSIC/MUSIC UP AND UNDER]

JAMIE YORK: Gillis is paying tribute to Hank Shocklee, the founder and leader of the so-called Bomb Squad, which created the music for the rap group Public Enemy. What you’re hearing now is a song called Can't Trust It, and it’s – what? After 20 years of listening to it, I think it’s made up of samples from James Brown, Sly and the Family Stone, the Lafayette Afro Rock Band, Slave, George Clinton, Run-DMC and a trove of things unknown. Hip-hop had begun with a deejay and two turntables playing the funkiest parts of records, the break beats, and had evolved by the late '80s to this, a kind of sonic architecture built piecemeal out of hundreds of carefully mined bits of sound.

[MUSIC/MUSIC UP AND UNDER] It’s a Saturday night in October in Bed-Stuy, Brooklyn and Hank Shocklee is deejaying an art opening. Twenty years after producing Can't Trust It, he’s not exactly sure what’s in it, or he’s not telling. But what he was trying to do couldn't be clearer.

HANK SHOCKLEE: And one of the reasons why we sample is because we want to get that natural vibe that was originally recorded in a record. You could rerecord those things but you won't get the exact vibe, because you’re talking about a time where people was recording records a totally different way than they do today. So we're sampling records from the '70s, and we're looking for just a bit, a snatch of something that we could sit there and go, okay, this thing’s edgy, It’s dark. What is it communicating?

[MUSIC UP AND UNDER] We will find something in a Tony Bennett record, Charley Pride. If it’s Turkish music we'll find something. You might find a kick, and it may have come from a classical record. You truncate what you want and then you turn it into whatever, taking a car door slam, and that will become a snare.

JAMIE YORK: Then, in the midst of his heyday with Public Enemy, Shocklee was told that what he was doing was suddenly illegal.

HANK SHOCKLEE: As guys started becoming more and more blatant with the sampling and the records started selling, selling more and more, the producers and writers and publishers started demanding’ royalties. And then it became a business.

JAMIE YORK: In 1989 the group De La Soul were sued by the Turtles for a lengthy sample. They settled out of court.

[MUSIC UP AND UNDER] In 1991, hip-hop artist Biz Markie was successfully sued for this song, Alone Again, by Gilbert O’Sullivan, for the use of his song, Alone Again, Naturally. It’s fair to say that Biz Markie was one of the blatant guys that Shocklee just referred to. He rapped over a whole song. Samplers like Shocklee suffered the consequences.

[“ALONE AGAIN” UP AND UNDER] The effect of these cases was devastating, especially for a community of hip-hop artists just getting their first taste of success. Duke law professor James Boyle says the Biz Markie case, in particular, was a sloppy solution to a complex problem.

[SONG “ALONE AGAIN”/UP AND UNDER]

JAMES BOYLE: The case was decided by a judge who actually ended up never really referring to the Copyright Act at all. In fact, he’d referred to the, the Old Testament, and “Thou shalt not steal,” rather than to the rather more complex and nuanced framework of the Copyright Act in assessing it. It was very poorly reasoned, if it was reasoned at all. But the thing that the judge said in the end is, you know, basically this stuff is theft, period, the end of story.

JAMIE YORK: Copyright law, as complex as it is, makes allowances for artistic borrowing, a doctrine known as fair use. Are you using the borrowed bit commercially? If so, did you transform it in some way? Did you take a sizeable portion of the original, the heart of it, and will your use have an effect on the market for the original song? These are the legal questions designed to be applied to music sampling, and yet, astoundingly:

JAMES BOYLE: We really have never had a rich fair use discussion about sampling and hip-hop, inside a courtroom, which is remarkable. Instead, we just have a set of industry practices of people paying licenses pretty much for any amount of the work, no matter how trivial.

JAMIE YORK: Jazz, to use just one example from an older artistic tradition, samples too, but seems legally immune. Perhaps all hip-hop needs is time.

JAMES BOYLE: This is a form of music that is very familiar to a generation, none of whom are federal district court judges. If Gregg Gillis were now being inducted into the Musicians Hall of Fame and you had 50-something people talking about “the golden days of the sampling revolution” on NPR, then I think we'd be in great shape because the judges would say, oh, this is a great American cultural form.

JAMIE YORK: That time though is something Hank Shocklee’s not going to get back. Twenty years of clearance culture took the rainbow palette of an audio artist like Shocklee. This is How to Kill a Radio Consultant, from 1991 -

[MUSIC/MUSIC UP AND UNDER] - and reduced him to monochrome, a single expensive color, courtesy of a well-known song, because that’s all they could afford. Twenty years after first being deemed illegal, hip-hop sampling thrives underground. Fueled by digital technology and the Internet, there have been a few notable successes among this latest generation, Gregg Gillis, who you heard at the start of this piece, and especially 2004’s DJ Danger Mouse, who created what he called The Grey Album, a mix of Jay-Z’s Black Album and the Beatles’ White Album.

[DJ DANGER MOUSE SONG/UP AND UNDER] The Grey Album made Danger Mouse a star. Never commercially released, it leaked far and wide, making a number of year-end top 10 lists and offering major labels an object lesson in how not to stop samplers. I asked at the beginning why Gregg Gillis hasn't been sued, yet. In fact, Danger Mouse may be why. James Boyle:

JAMES BOYLE: There is the story that the labels learned from DJ Danger Mouse and don't want to risk creating the Che Guevara of the digital sampling age, the lost hero to which all of us will offer reverence and thus make him even more popular. Another story is, they're going, hmm, this is really interesting. Let's let him run a bit, and when we finally see how things are playing out then we'll figure out a way of getting a revenue stream out of this. A third story is they realize it’s actually fair use and they don't want a bad precedent brought against them. And then a fourth one is that they are gibbering in terror and are so scared by this new phenomena, they're incapable of rational action of any kind and so are caught in a kind of fugue state, as the digital music scene develops.

JAMIE YORK: So which is it?

JAMES BOYLE: If you went around the music industry and asked people, why haven't you sued him, you would get all of those answers.

[MUSIC]

JAMIE YORK: Boyle and Shocklee and Gillis are all quick to point out that they're not anti-copyright. They'd love a world in which paying for samples is simple and fair, but that’s not the world they've got. The cost and risk of sampling has fundamentally changed a whole genre of music, and yet, Gregg Gillis is likely playing his hundreds of samples somewhere tonight, probably shirtless [LAUGHS], probably for adoring women, and he’s going to keep claiming fair use. He doesn't know why he hasn't been sued, but he’s decided to embrace that riddle of his career, that the more successful he gets, the more attention he’s paid, then the more likely he is to be a legal target. Maybe he'll be the first to make the fair use argument in court, but with the ranks of samplers swelling every day, he certainly won't be the last. For On the Media, I'm Jamie York. And here’s Pennsylvania Congressman Mike Doyle on the House floor in 2007:

[MASH-UP MUSIC UP AND UNDER]

MIKE DOYLE: Mr. Chairman, I want to tell you a little story of a local guy done good. His name’s Gregg Gillis. And by day he’s a biomedical engineer in Pittsburgh, at night, he deejays under the name Girl Talk. His latest mash-up record made the top albums of 2006 list from Rolling Stone, Pitchfork and Spin Magazine, amongst others. His shtick, as The Chicago Tribune wrote about him, is quote, “based on the notion that some sampling of copyrighted material, especially when manipulated and re-contextualized into a new art form, is legit and deserves to be heard.”

[MUSIC/MUSIC UP AND UNDER]