Fair Use: Negativland's Documentary Hypothesis

by Deuce of Clubs

(First published in Planet Magazine, 04jul1995)

Fair Use is a graphic representation of Negativland's case in particular and the case for the reform of copyright law in general.

"Books like ours," says Negativland's Mark Hosler, "are really going to help in terms of widening the dialogue and getting people thinking about different perspectives. And the way things are going to change in this country is through the courts."

It turns out that Negativland is not as interested in new copyright law as in enforcing the real meaning of existing copyright law. "The intent of the copyright law is fine," Hosler explains. "The idea that you encourage creativity by allowing people to profit from sharing their ideas or their creations— that's a great idea. There is a part of the copyright act that is the "fair use" clause. The reason we called the book Fair Use was that we really want to direct people's attention to that little phrase, because the fair use clause has within it the [right] idea already."

The frontispiece of Fair Use is a reproduction of the text of the fair use clause of the United States Copyright Act. "It's saying that if things are being used for some kind of commentary or criticism or something, that constitutes fair use. What we want to see happen is an expansion of the definition of fair use, so that it doesn't have to be just overtly critical, or commentary, or parody. It could be something that just borders on surrealism."

Negativland thinks realistic copyright guidelines would recognize their sound collage efforts as legitimate artistic expressions. They maintain that what they do is what artists have been doing for centuries—it's just that advanced technology has made it easier to do.

"Negativland is actually retrogressive," says Don Joyce, the band's unofficial art historian. "We are going back to a process that is very, very old. In visual arts it goes all the way back to the turn of the century, when collage was invented. Collage was just taking things from the world around you and pasting them up together. No payment was made, no permission asked." Some of our century's most honored artists worked with collage, Joyce says. "People like Kurt Schwitters used to pick up cigarette packages off the street and rip the labels off because they were colorful. Picasso did a lot of it, Braque did a lot of it."

Joyce points out that the same kinds of borrowings—even outright thefts—have always gone on among classical musicians, "who used to steal wholesale from other people," not only from folk music but also from each other.

Modern artists who get caught borrowing can find themselves in a lot of trouble. John Oswald tangled with Michael Jackson's record label over a CD cover illustration portraying Jackson as a nude woman. Oswald was forced to destroy all remaining copies of the CD. Cases such as Oswald's and Negativland's suggest that it is more dangerous to tamper with a visual representation than with sounds; Oswald's "The Great Pretender"—nothing more than a Dolly Parton record played at different speeds—did not cause any legal troubles. "Oswald did not put it out as a record with Dolly Parton's face on the cover and say it's by Dolly Parton—which in a way is what we did with U2," Hosler says. "[`The Great Pretender'] is contained within some other work, and it's not presented in a way that interferes with [Parton's] market at all."

Market considerations do play some part in Negativland's copyright position, as Hosler expresses it: "Anything should be fair game. If you're going to make anything in the popular electronic media...you should be fair game for being chopped up and rearranged and used in any way, shape, or form to make something else. EXCEPT to be used to sell things. That's the one exception that we personally find just repugnant: that someone would take something I made and use it to sell something without my permission."

But couldn't it be said that is exactly what Negativland does—that they take things others have made and use them to sell their own records? "Yeah," Hosler admits. "The thing is that the line is completely blurred between whatever might be sort of fine art and mass art. I would consider what we do to be mass-produced fine art."

Do the members of Negativland consider their position on copyright to be an extreme one? "Given the present paradigm or situation, I guess it is extreme," says Joyce. "But internally I don't think it's extreme. It sounds like common sense to me. Do you want art to be influenced by other art or don't you? Of course you do. It always has been. Seems to be the way it works." As Hosler says, "The whole idea is already there. It just has to be brought sort of kicking and screaming into the twentieth century. And it has to allow for the fact that we have all of these capturing technologies, reproducing technologies."

Ultimately, Joyce would like to see copyright laws articulated by artists instead of politicians. "When Congress makes these copyright laws and all these regulations, they don't get any input from the artists at all," he says. "All the lobbyists and businesspeople and label owners and record company people are in their lobbying for their own interests, telling Congress, `Yes, all this we're doing to protect the artist—poor, helpless, ignorant artist who can't do anything for himself, who needs us and our agents and our accountants to keep everything straight.' And they [Congress] fall for all that, they don't know any different."

According to Joyce, government and art just don't mix. "I don't care if PBS loses all their funding," he says. "I'd like to see the government get out of the arts. I'm real conservative on that issue," he says. "The government should be hands off of art. It never does any good—the influence is always to make it bland and mediocre. They don't know anything about it. I would like to see the government completely out of the arts, and all artists either find private support or find a way to support themselves by actually getting people to buy their work. You know—unheard of! `Wow! We want to actually compete.'" [Laughs]

Fair Use not only chronicles Negativland's past legal troubles over copyright: it could start a new chapter. The book is like a paperback mirror of a Negativland sound collage: the band gathered together material relevant to the story without regard for ownership and reproduced them without permission. Further lawsuits, then, are a possibility. (SST Records' Greg Ginn sued the band for reprinting an SST press release in The Letter U and the Numeral 2, a magazine-sized version of Fair Use.) This time, however, Negativland is ready.

"If we get sued for this new book and record, I think my first reaction—personally—would be to call up the attorney representing whoever was suing us and say: `Are you out of your mind?' [Laughs] 'Our defense, if you proceed with this lawsuit, is going to be a fair use defense. It's a fair use of a piece of audio in an audio collage about fair use, on a CD called Fair Use, inside of a book called Fair Use, which is all about fair use. And you are going to lose.' And I don't care who it is. Any lawyer with half a brain would have to pause and think about it. And it is why perhaps we may be left alone even if it comes to the attention of someone who doesn't like what we did. They'd say, 'Gee, Negativland really almost—almost—looks like they want someone to sue them, because they want to fight it and they want to change things. And we don't want that to happen, so we'll just leave them alone.'"

Hosler recognizes that Negativland's continued noisemaking could provoke opposite results: sometimes the squeaky wheel gets oiled, but sometimes the buzzing fly gets swatted first. "It could be like the guy who very publicly resisted signing up for Selective Service," he says, laughing. "There's all the people who just quietly didn't sign up, but the guy who made a big stink about it was prosecuted and tossed in jail. So someone else could say, 'We need to set an example.' And what better example to set than go after Negativland?"