Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Saturday Night at the Mashup Movies: Negativland, “No Other Possibility”
John Oswald, pioneer of the aural collage: the futility of law in the face of technology it cannot control.
I’ve written at length in this blog about compositions consisting of digital remixes of pre-recorded samples and the contentious and utterly unresolved tensions between copyright, fair use, and the extra-legal reality of practices that cannot be controlled by legal rules. I’ve written about artists as varied as Negativland, Girl Talk, Steinski, and Kutiman, among others. Negativland and Steinski were pioneers in the genre, composing their aural collages back in the ancient days before digital media made the stitching together of digital information something one could do sitting in front of a laptop in bed.
But no one was there before John Oswald of Plunderphonics. A mere fraction of his career’s chronology demonstrates that he is perhaps the pioneer of the genre:
1973-75
With the sanction of William S. Burroughs, John Oswald cut up recordings of him reading his texts advocating cutting up methods, & consequently discovered an acoustic pallindrome, mediations between backwards & forwards, polysyllabic masking & phase imploding.
1975
Oswald melds a radio evangelist with alleged satanists Led Zepplin in the early rap track POWER. released in 1995 by Musicworks magazine.
1975-85
MYSTERY TAPES assembly & dissemination (by Mystery Tapes Etc.International), include many early plunderphonistic experiments.
1980
Oswald guest produces a one hour radio show for CFRO in Vancouver called Sounds Wrong which includes the first public issues of Dolly Parton & Rite of Spring transformations.
1982
Collusion, a British magazine publishes an article by Oswald, entitled “Revolutions & Mr Dolly Parton – a vortex of of androgeny”.
1985
An essay by John Oswald entitled “Plunderphonics, or, Audio Piracy as a Compositional Prerogative” was presented at the Wired Society conference in Toronto.
1988
The original Plunderphonics EP (never-for-sale, out-of-print) was for its time the most extreme example of sampling ever produced. Four well-known music personalities representing four musical genres & four notable epochs of recording history were presented in surprising ways, or, as the press release put it: warp drive.
1989
The Plunderphonic CD (never-for-sale, remaining stocks destroyed by Michael Jackson & CBS) has become an underground cult classic. The realistic cover photo of a nude Michael Jackson revealed as a white woman paralleled the musical transformations depicted on the disc. Other electroquoted artists included Bing Crosby, The Beatles, Glenn Gould, Public Enemy & (consequently) James Brown.
You can read a more complete biography of Oswald here.
Far more interesting is an extensive recorded interview with Oswald. One of the most fascinating parts of the interview is Oswald’s account of his experience with the overwhelming legal forces brought to bear in the name of copyright enforcement against his new compositions. In a series of events not unlike those experienced by Negativland in connection with their composition U2, every last CD Oswald retained of his recording was destroyed. Of course, he had already distributed some of those CDs and was unable to recover them. And we all know digital media metastasize beyond any capacity of corporate control. So, of course, as with Negativland’s U2, Oswald’s recording not only continues to exist; it is available (for free) for digital downloading.
For your listening pleasure, I include here one track from the album: Glenn Gould-Aria(mp3).
Special Friday Night Mashup: Negativland’s “U2,” a lesson in copyright (not least because it’s available online now)
The facts” re U2 v. Negativland:
August 20, 1991: SST Records releases a CD single by Negativland called “U2″, a tape-collage parody of U2′s “I Still Haven’t Found What I’m Looking For” featuring sampled and scrambled portions of the U2 song itself and a found tape of radio personality Casey Kasem losing his cool. As part of the joke, the CD packaging features the title–the letter “U” and the numeral “2″–largely and prominently with the attribution “Negativland” in much smaller letters below it.
October 5, 1991: two weeks later, a federal judge issues a temporary restraining order at the behest of Island Records and Warner-Chappell Music. “Preferring retreat to total annihilation,” Negativland and SST immediately capitulate to every demand. These demands are:
Everyone who received a copy of the record–reviewers, record stores, radio stations, etc.–must be notified to return it. If they fail to comply, they may be subject to penalties “which may include imprisonment and fines”. Once returned, the records will be forwarded to Island for destruction.
All of SST’s on-hand stock of the record–in vinyl, cassette, and CD–is to be delivered to Island, where it will be destroyed.
All mechanical parts used to prepare and manufacture the record are to be delivered to Island, presumably also for destruction. This includes “all tapes, stampers, molds, lacquers and other parts used in the manufacturing” and “all artwork, labels, packaging, promotional, marketing, and advertising or similar material.”
Negativland’s copyrights in the recordings themselves are assigned to Island and Warner-Chappell. Negativland no longer own what they have created.
Negativland and SST must pay $25,000 and half the wholesale proceeds from the copies of the record that were sold and not returned. Estimated cost to Negativland is $70,000–more than they have made in their 14 years of existence.
From Wikipedia, more of interest on the entire incident:
In June, 1992, R. U. Sirius, publisher of the magazine Mondo 2000 came up with an interesting idea. Publicists from U2 had contacted him regarding the possibility of interviewing Dave Evans (aka “The Edge”) hoping to promote U2′s impending multi-million dollar Zoo TV Tour, which featured found sounds and live sampling from mass media outlets (things for which Negativland had been known for some time). Sirius, unbeknownst to Edge, decided to have his friends Joyce and Hosler of Negativland conduct the interview. Joyce and Hosler, fresh from Island’s lawsuit, peppered the Edge with questions regarding his ideas about the use of sampling in their new tour, and the legality of using copyrighted material without permission. Midway through the interview, Joyce and Hosler revealed their identities as members of Negativland. An embarrassed Edge reported that U2 were bothered by the sledgehammer legal approach Island Records took in their lawsuit, and furthermore that much of the legal wrangling took place without U2′s knowledge: “by the time we [U2] realized what was going on it was kinda too late, and we actually did approach the record company on your [Negativland's] behalf and said, ‘Look, c’mon, this is just, this is very heavy…’” Island Records reported to Negativland that U2 never authorized samples of their material; Evans response was, “that’s complete bollocks, there’s like, there’s at least six records out there that are direct samples from our stuff.”
The “U2″ single (along with other related material) was re-released in 2001 on a “bootleg” album entitled These Guys Are from England and Who Gives a Shit, released on “Seelard Records” (a parody of Negativland’s record label Seeland Records). It is thought likely that Negativland themselves were responsible for the re-release, and that U2 gave their blessing; although the Negativland website refers to this release as a bootleg, it is available from major retailers like Best Buy, Amazon, and Tower Records, as well as Negativland’s own mail-order business.
Negativland are interested in intellectual property rights, and argue that their use of U2′s and others’ material falls under the fair use clause. In 1995, they released a book, with accompanying CD, called Fair Use: The Story of the Letter U and the Numeral 2, about the whole U2 incident (from Island Records first suing Negativland for the release to Negativland gaining back control of their work four years later). The book ends with a large appendix of essays about fair use and copyright by Negativland and others, telling the story with newspaper clippings, court papers, faxes, press releases and other documents arranged in chronological order. An unfortunate side effect of the Negativland-Island lawsuit was another one brought on between Negativland and SST, which served to sever all remaining ties the two had. To get back at Negativland (while wryly circumventing their name), Ginn later released the Negativ(e)land: Live on Tour album on SST.
If Girl Talk does get sued, I’d love to represent him.
Greg Gillis and I see things very similarly, and I”m a big fan too:
Collage is art, not theft
No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard
when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone’s music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.
This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce.
These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material’s avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.
Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in
their usage. . . .
Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.
Aural Collage and the Law
Click on the picture below to see my PowerPoint presentation from last week’s COSE Arts Forum on Intellectual Property and the Arts.
Negativland was way ahead of Girl Talk, and still is.
On September 2, I will have the honor of being part of a seminar, sponsored by the Arts Network of the Council on Smaller Enterprises (COSE), that “will feature a multimedia presentation by independent musician, arts activist and “citizen lobbyist” Mark Hosler from Ashville, North Carolina. Mr. Hosler, well known [as one of the founding members of] the band Negativland for his experiences fighting legal battles over copywright, intellectual property and fair use in art and music, will present a mixed media lecture about his first hand experience with these topics.” Negativland was way ahead of Girl Talk. Holser’s encounters with the inanities of copyright law are legendary and illustrative. Most importantly, Holser is remarkably articulate on these issues. Negativland’s entire site is worth a visit; here is one of Holser’s most recent writings:
From our 28 years of being creators, observers, and consumers of music, art, and video, our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the public is now able to create and distribute new work via digital technologies. We’ve also witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At other times, as I am sure you know, they benefit no one except the businesses lobbying you. We are concerned when this does not serve the public interest.
We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of how we all build upon the ideas and works of those who came before us. Copyright was always intended as a balancing act between giving ownership to creators so as to provide incentive to create new works, and allowing works to lapse into the public domain so that new ideas could develop. But our founding fathers could never have imagined the kind of world we live in today and the amazing new technologies that we are surrounded with – technologies that encourage and inspire us to interact with the world and create in unprecedented new ways. Protecting the author of a creative work is a good thing, but the benefits of copyright have been thrown off balance by the disproportionate influence of those with the most money. In fact, the more recent expansions of our nations copyright laws represents a break from our nations past and from the intentions of our own Constitution.
Did you know that copyright originally lasted only 14 years, and then all work fell into the public domain? The limit now is 70 years plus the life of the creator, meaning that nothing made in our lifetimes will fall into the public domain. This does not strike us as a very good public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and this system seems to have done nothing to discourage innovation, creation, and especially remuneration in the fields of science and technology with this relatively short time span.
But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite literally, bombarded with media. It has always been a part of human nature to make art in response to and using material from the world around us. Nowadays, anyone with a small computer can easily make, remake, slice, dice, mix, and remix from any electronic media they can get their hands on. And because we can, we often do. Besides being fun, this kind of work creates a new type of cultural “conversation” that we can all have with the media around us, a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom of speech.
Copying has gone on in art and music throughout the ages, from “quoting” in classical music compostions, to homage and parody. In much of the last century, these “appropriation” practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent developments, they have now moved wholly and firmly into the mainstream. And yet our laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen woefully behind the curve of what the public actually wants to do with all that digital “stuff” out there. Millions world wide are creating art, music and video that incorporate elements of existing work – cutting and pasting bits and pieces of music, video, text, and pictures made by others to create new works. Millions of web pages now use various Creative Commons licenses to provide a nuanced alternative to traditionally black and white interpretations of copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all happy with copyright as it stands now.
At this juncture, we feel it’s necessary to point out that we support artists and creators being paid for the work they produce. We believe copyright was correctly intended as a judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses who produce and sell most media and entertainment. And we should also mention that all this creative re-use of material rarely if ever puts new work in economic competition with its sources. It does not pose any reasonable economic threat to the original source in any marketplace that they share. In an ideal world, Negativland would like to see the notion of Fair Use expanded to accommodate, accept, and protect these new practices.