For decades, recording artists have lived in fear of their albums ending up in limbo if a record label refused to release it. But no more? Danger Mouse, who broke into the public consciousness with his remarkable Grey Album remixing Jay-Z and The Beatles and went on to form Gnarls Barkley, is apparently counting on the fact that it's the fans, not record labels like EMI, who have the upper hand in the digital age.

Danger Mouse has been working on a collection called "Dark Night of the Soul." Apparently, relations with EMI on the project have broken down, resulting in Danger Mouse issuing this statement:

Danger Mouse's new project Dark Night Of The Soul consists of an album length piece of music by Danger Mouse, Sparklehorse and a host of guest vocalists, along with a collection of original David Lynch photography inspired by and based on the music. The photographs, which provide a visual narrative for the music, are compiled in a limited edition, hand numbered 100+ page book which will now come with a blank, recordable CD-R. All copies will be clearly labeled: "For Legal Reasons, enclosed CD-R contains no music. Use it as you will."

In other words, Danger Mouse is counting on fans getting the music elsewhere (it leaked on P2P networks on May 7 and is currently available as an on-demand from NPR) and burning it to the CD-R included with the book.

Some copyright lawyers may ask whether Danger Mouse is "inducing" copyright infringement by encouraging fans to make these unauthorized copies (this assumes EMI owns the copyright in the sound recordings that make up "Dark Night of the Soul," which would be typical in a major label deal).

Here's where an interesting copyright law wrinkle might step in -- if the blank CD-R is a royalty-paid "music CD-R," then the copies made by fans (whether made from NPR or P2P) would be legal under 17 U.S.C. 1008, which provides that no infringement lawsuit may be "based on the noncommercial use by a consumer of [a digital audio recording] medium for making digital musical recordings." Digital audio recording medium (DARM) is defined to include "music CD-Rs" on which a royalty is paid to copyright owners.

All this just underscores what the digital world has been telling record labels for a decade: we don't need you for distribution. At least for Danger Mouse, the fans will be taking care of that themselves.

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