The Borrowers

Seven years after their last tour, Negativland continue to fight the industry claim that Fair Use is foul, and foul use is fair
Jonathan Nelson


It's everywhere. The constant hum of car radios, movie trailers, Muzak, talking heads, diet-soda jingles--all vying for your attention. This is the noise taking up space inside your head. It's also what keeps Negativland awake at night. Pop music may be less distinguishable from the commercial media barrage than ever, but few outside this Berkeley-based music-and-art collective have made a career of sampling the culture in order to comment upon it. Since forming in 1979, the group discovered firsthand the attachment so many corporations have to the sounds they emit. Apparently, we're supposed to ingest all this information, and be manipulated by it, but we're specifically denied the right to manipulate it in return.

This may be why Negativland is better known as a legal case than a band. In 1992 they were sued by Island Records for an EP titled U2 (SST), which found them incorporating portions of "I Still Haven't Found What I'm Looking For" and recordings of Casey Kasem mouthing off about the song's original, Irish creators. (The whole episode was later chronicled in the book Fair Use: The Story of the Letter U and the Numeral 2.) Even after the EP was seized, Negativland continued to willfully disobey laws they felt were unjust and outdated, exploring the limits of Fair Use, that clause within copyright law providing exceptions for commentary or art. The group's most recent album, 1997's Dispepsi, used countless snippets from classic cola commercials. It amounted, like their entire body of work, to an extended act of civil disobedience.

For years Negativland member Don Joyce has hosted a weekly three-hour Berkeley radio show, Over the Edge, which mixes such media elements live. Speaking over the phone on the eve of his group's first tour in seven years, Joyce told City Pages that his band merely respects old artistic traditions that long predate copyright law.


CITY PAGES: You call yourselves "culture jammers." Where does that term come from?

DON JOYCE: It has come to mean getting inside the traditionally one-way media and manipulating it to your own purposes. We were originally fans of ham radio, and that's where "jamming" first came to us. It's a term from when guys would get on and interrupt other guys' signals and put in all kinds of tapes and whistling and obscenities over the air. These were "jammers" on the airwaves. We would record these and use them in various ways--they're often funny.

CP: After U2's lawsuit, I imagine you guys have been forced to become experts on the subject of copyright law...

JOYCE: Yeah, certainly for a while we were deeply involved in reading legal texts [laughs]. But it's horrible. I hate it. And I'm not a continuing scholar on the subject.

CP: Has all that changed your way of making music?

JOYCE: No, it didn't change it a bit, funnily enough. Ever since the beginning, every single record we put out is technically, from a copyright standpoint, just as illegal as any other one. We only got sued for one out of about 20 releases. Fact is, you can get away with [sampling] a whole lot of stuff as long as it's an out-of-print record or a little snippet of a radio broadcast. The thing we got sued for was a U2 record, and that's when you get in trouble--when you start sampling from the rich and famous.

CP: I noticed that your 1981 album Points actually bears the old copyright logo. Then, after the U2 suit, you stopped putting that on your records, replacing it with the symbol for no copyright, N©. What exactly does N© signify to you?

JOYCE: It's just a symbol of an idea that maybe copyright's not such a great thing. We aren't strictly against copyright; we don't want to see our Negativland records come back to us from China or someplace as exact bootleg copies, for which we get nothing. But collage is something else. Copyright law came along before all this sampling technology did. It doesn't account for these differences, that there may be an artistic approach here that involves using existing work.

Fair Use is the way around copyright. It excuses you from the regulations if your work is comment, criticism, parody. Fair Use is there, but it's rarely used, because the people who are sued usually can't afford to go to court and defend themselves on that basis. We would like to see copyright law adjusted to make a distinction between artistic uses and commercial uses.

CP: Yet even if your records represent an artistic use of material, they're still being sold.

JOYCE: But it's also a new work. I say that's the way it should be. All art is theft, if you think about it. It always has been and it probably always will be. But commerce has worked its way into the arts and made it all private property.

It used to be all there for the taking. The whole history of folk music, for instance, is basically taking somebody else's tune and putting new words to it or taking somebody else's words and putting new tunes to it. That's how music evolved. It's a very natural, human process. It goes back as far as monkey see, monkey do. That's our nature: to copy. And that's how we progress, how everything evolves--science, literature, art. But in the last century, all this stuff became private property.

Now we like to think that good art is "original art," whatever that is. Well, there's practically nothing out there that's truly original. We just want the copyright law to recognize this in a way that will allow collage to continue and not be an illegal technique--unless you're rich and can afford all the samples. We think collage should be free.

CP: Do you have any hope that Fair Use will at some point be expanded to include that?

JOYCE: No hope at all [laughs]. Is Congress going to understand what I just said? No, they don't care. Basically, all their money comes from the corporations who now own music and everything else. They're working for them, not us.

CP: Well, what about other solutions to the problem? Say, some kind of a scale, where you determine exactly what size the sample is, and then multiply that by how many copies you sold...

JOYCE: No, I don't think you can reduce it to some kind of math. Because each [sample] is unique. That's why the Fair Use statutes within copyright law don't give broad rules like that. They say each case must be judged on its particular merits. So in Fair Use, there's no such thing as precedent.

CP: So even if the courts were to decide to give Negativland its U2 album back, and someone wanted to use this as precedent for a new work of art...

JOYCE: It wouldn't set a precedent for anybody else. I think that's correct, actually. Most people can tell immediately whether it's a work of art or whether it's a bootleg. All you have to do is listen to it, and you can tell whether there has been creative input involved, a transformation of some kind.

CP: Well, what about the argument that this is just a new kind of collaboration with the artists you're sampling, and that they deserve compensation?

JOYCE: Well, we believe there's an ethics in all this and that if you're using samples you should identify them. But no, as far as jumping in and being part of the royalties or something, it makes collage almost impossible. We use hundreds and hundreds [of samples] on a record, and to find all those sources and find out who owns them--then try to get their permission and pay them money before we do it--means we just wouldn't do the work. It would be impossible. So, yeah, some hip-hop band using one or two samples--their label is contacting the other label and they are paying clearance rights, and they are doing it all legally. Fine. But a lot of us independent music-collage people out here are in a much more complex situation.

CP: I think it was John Oswald who said that if creativity is a field, then copyright is the fence.

JOYCE: Philosophically, yeah. It's like the whole world comes into your house through all this media. It's in your living space. I kind of feel it's mine when it reaches me. In some way, it becomes mine. And that is exactly how culture should work. Culture is supposed to be a shared thing.




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