The epic saga of fair use, where art must come first, March 14, 2004

By	Daniel J. Hamlow (Chikusei City, Japan) - See all my reviews

The book chronicles the three year struggle of sonic pranksters Negativland, creators of inventive and often funny soundscape collages taking samples from music, radio, their own voices, and programmes against first Island Records and then SST, all for the right to enhance the right to see

In 1991, Negativland took 35 seconds from U2's "I Still Haven't Found What I'm Looking For," and created their usual collage around it. Another track replayed the melody through a computerized that made it kazoo-like and included of outtakes from Casey Kasem's American Top 40 radio programme, which had the respectable DJ cursing, using four-letter words, and a ranting tirade at the end. I first heard the Negativland U2 single at NMSU, having had it copied from a friend--thank you, Nicholas Kurtz!- and laughed my a** off upon hearing Kasem using the F word.

Instantly, Island Records jumped on Negativland's label, SST Records, demanding the withdrawal of the single, which they said misled buyers into thinking it was a new U2 record, because they didn't seek permission in sampling the song and violated copyright law, and because the profanities and mutilated version defamed U2's clean-cut image. Negativland was ordered to destroy all copies of their single and SST was ordered to pay Island nearly $30,000 in damages.

Negativland then left SST Records because label owner Greg Ginn, over a dispute over splitting costs of the lawsuit. Ginn wanted the group to front the whole amount. Negativland proposed a 50-50 split, plus royalties from their previous recordings to be deducted until their share was paid. Ginn then sued for copyright infringement on Negativland using the bumper sticker logo from SST. The whole thing was eventually settled out-of-court.

The band's role in this is mixed. The point is made to differentiate between U2 and Island Records, as the Edge had no quarrel with the parody version, and the point made of public perception that Island was suing SST on U2's behalf, whereas actually it was Island suing on their own behalf.

Casey Kasem was one of the last stumbling blocks, as he didn't like his outtakes being paraded, to have a negative image of himself. It wasn't until the Supreme Court's unanimous March 1994 ruling on Acuff/Rose Music Inc. vs Campbell, Campbell being Luther Campbell of 2 Live Crew, who had done a parody version of Roy Orbison's "Pretty Woman," that cleared the final hurdles. Basically, the court, ruling in favour of Campbell, said that "unauthorized commercial parodies may be protected from penalties for copyright infringement." Both songs on the U2 single were eventually reissued in 2001 on Negativland's These Guys Are From England And Who Gives A Sh-t?

This calls into question the efficacy of the legal system, where the courts assume plaintiff and defendant are equally powerful. What usually happens is that the more powerful entity wins because of more money, and for the weaker, simply knowing the law doesn't always help. In other words, the powerful sue just because they can.

But the wider issue is the concept of public domain vs private ownership, plus the dynamic that "the entire history of art forms has been based on theft." Sampling is good example of postmodern art, where artistic expression is reinterpreted, recontextualized within a new framework, causing the listener to rethink and reanalyze this new representation.

Detailed doesn't begin to describe this chronicle, as it's a compilation of magazine and newspaper ads, legal documents (lawsuits), letters, faxes, drawings, photos, interviews, all presented in chronological order. The appendix lists other fair use documents, such as the Supreme Court ruling on Acuff v. Campbell, the concurring opinion by Kennedy, an article on sampling as a postmodern art form, an interview with John Oswald, who became an earlier victim with his irreverent Plunderphonics album, and a transcript of both songs on the U2 single. One of the most important stories in the history of free expression.

Oh yes, and there's a CD, Dead Dog Records, which is a dizzying collage of sound, effects, looping, songs, and audio commentary mirroring the content of the book.

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