Negativland on Fair Use and Downloading

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This article originally appeared in XLR8R, Summer 2005
Negativland has always had a penchant for the kind of toilet humor that would make Duchamp proud. Their latest album No Business comes complete with a bright yellow whoopee cushion emblazoned with the copyright symbol. As the Supreme Court hears the case of music industry behemoth Sony against file-sharing programs like Grokster, it looks like 25 years into their career Negativland was 25 years ahead of the curve and the murky ethics of found sound appropriation which Negativland has explored through electronic music and social satire couldn’t be more current. No Business contains collaged samples of Ethel Mermen, Disneyland rides and a melodramatic Grammy awards speech by the president of the RIAA on the evils of downloading music.

No Business is a big fancy package with a lot of stuff in it,” says band member Don Joyce, “That’s our personal strategy to coexist with downloading, making the album into a multimedia package, offering more than you can get online.” Although the album comes in a box resembling novelty itching powder, inside its gag exterior is a booklet of academic treatises on file-sharing which the band wrote for a conference on the public domain at Duke University Law. It’s a gleefully anarchic Book of Revelations for the recording industry, describing how if the industry doesn’t find a way to accommodate downloading it may just collapse… and maybe that’s fine. The death of corporate labels is not the same as the death of music. “The notion that one could run a business or have a career based on selling thousand of pieces of plastic coated in aluminum is a fairly new one in history and it’s not written in stone.”

Back in 1991, the band took a bullet for the younger generation of found sound musicians they have inspired. The band was sued by Island Records after they sampled “I Still Haven’t Found What I’m Looking For” alongside outtakes of Kasey Kasem, cursing about the stupidity of the adopted names of the U2 band members. Negativland lost more money in the case than they had made in their entire history as a band.

But the band’s greatest contribution to the turntablists and knob-twiddlers may be it’s involvement with Creative Commons, a non-profit organization which has created an alternative to copyright. “They asked us what we wanted copyright to do,” says Joyce, “It’s a way to unilaterally update copyright as it should be.” A wide variety of artists have registered their work under this license which allows their works to be cut up and collaged by other artists.

Sampling lawsuits are on the wane, as record labels and the RIAA instead focus their attention on suing everyone from music hungry college students to the tech savvy elderly who labels claim are bleeding their profits. Joyce cites the history of the blank tape tax. When blank tapes first came into production the record industry saw the sky falling, and lobbied for a tax on every blank tape sold. The proceeds would then be divvied up among the major labels. A similar brouhaha occurred over the arrival of the VCR –both technologies which have come and gone with the entertainment industry still fully intact. “It’s like these people never learn,” Joyce says, “It may very well be the same thing with the Internet.”

Copyright law contains a clause allowing the use of elements of copyrighted works for parody or critical comment, Negativland’s central argument is that there ought to be a similar Fair Use provision for collage, which would differentiate bootlegging from artistry. If you listen carefully when you sit on the whoopee cushion beneath the audible flatulence you can almost hear cut up and collaged sound fragments of Stevie Nicks and John Cage.

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