IP: Re: Great book on IP issues

[Dave Farber <farber () central cis upenn edu>]

> From the EFF Intellectual Property Archive......


                            Fair Use
                         By Negativland


As Duchamp pointed out many decades ago, the act of selection can be a
form of inspiration as original and significant as any other. Throughout
our various mass mediums, we find now many artists who work by "selecting"
existing cultural material to collage with, to create with, and to comment
with. In general, this continues to be a direction that both "serious" and
"popular" arts like. But is it theft? Do artists, for profit or not, have
the right to freely "sample" from an already "created" electronic
environment that surrounds them for use in their own work? 


The psychology of has favored fragmentary "theft" in a way which does not
engender a loss to the owner. In fact most artists speak freely about the
amount of stuff they have stolen at one time or another. In the realm of
ideas, techniques, styles, etc. most artists know that stealing (or call
it "being influenced" if you want to sound legitimate) it is not only OK,
but desirable and even crucial to creative evolution. This proven route to
progress has prevailed among artists since art began and will not be
denied. To creators, it is simply obvious in their own experience. 


Now some will say there is a big difference between stealing ideas,
techniques, and styles which are not easily copyrighted, and stealing
actual material, which is easily copyrighted. However, aside from the
copyright deterrence factor which now prevails throughout our lawbound art
industries, we can find nothing intrinsically wrong with an artist
deciding to incorporate existing art "samples" into their own work. The
fact that we have economically motivated laws against it does not
necessarily make it an undersirable artistic move. In fact, this kind of
theft has a well respected tradition in the arts extending back to the
Industrial Revolution. 


In the early years of this century, Cubists began to attach found
materials such as product packaging and photographs to their paintings.
This now seems an obvious and perfectly natural desire to embody or
transform existing things into their own work as a form of dialogue with
their material environment. And that "material" environment began to grow
in strange new ways. Appropriation in the arts has now spanned the entire
century, crossing mediumistic boundaries, and constantly expanding in
emotion relevance from beginning to end regardless of the rise and fall of
"style fonts". It flowered through collage, Dada's found objects and
concept of "detournement". and peaked in the visual arts at mid-century
with Pop Art's appropriation of mass culture icons and mass media imagery.
Now, at the end of this century, it is in music where we find
appropriation raging anew as a major creative method and legal
controversy. 


We think it's about time that the obvious esthetic validity of
appropriation begins to be raised in opposition to the assumed preeminence
of copyright laws prohibiting the free reuse of cultural material. Has it
occurred to anyone that the private ownership of mass culture is a bit of
a contradiction in terms? 


Artists have always perceived the environment around them as both
inspiration to act and as raw material to mold and remold. However, this
particular century has presented us with a new ever-growing media
environment- an environment just as real and just as affecting as the
natural one from which it somehow sprang. Today we are surrounded by
canned ideas, images, music, and text. My television set recently told me
70 to 80 percent of our population now gets most of their information
about the world from their television sets. Most of our opinions are no
longer born out of our own experience. They are received opinions. Large
increments of our daily sensory input are not focused on the physical
reality around us, but on the media that saturates it. As artists, we find
this new electrified environment irresistably worthy of comment,
criticism, and manipulation. 


The act of appropriating from this media assault represents a kind of
liberation from our status as helpless sponges which so desired by the
advertisers who pay for it all. It is a much needed form of self defense
against the one-way, corporate-consolidated media barage. Appropriation
sees media, itself, as a telling source and subject, to be captured,
rearranged, even manipulated, and injected back into the barrage by those
who are subject to it. Appropriators claim the right to create with
mirrors. 
 
Our corporate culture, on the other hand, is determined to reach the end
of this century while maintaining its economically dependent view that
there is something wrong with all of this. However, both perceptually and
philosophically, it remains an uncomfortable wrenching of common sense to
deny that when something hits the airwaves it is literally in the public
domain. The fact that the owners of culture and its material distribution
can claim this isn't true is a tribute to their ability to restructure
common sense for maximum profit. 


Our cultural evolution is no longer allowed to unfold in the way that
pre-copyright culture always did. True folk music, for example, is no
longer possible. The original folk process of incorporating previous
melodies and lyrics into constantly evolving songs is impossible when
melodies and lyrics are privately owned. We now exist in a society so
choked and inhibited by cultural property and copyright protections that
the very idea of mass culture is now primarily propelled by economic gain
and the rewards of ownership. To be sure, when these laws came about there
were bootlegging abuses to be dealt with, but the self-serving laws that
resulted have criminalized the whole idea of making one thing out of
another. 


Our dense, international web of copyright restrictions was initiated and
lobbied through the Congresses of the world, not by anyone who makes art,
but by the parasitic middle men of culture- the corporate publishing and
management entities who saw an opportunity to enhance their own and their
clients' income by exploiting a wonderfully human activity that was
proceeding naturally around them as it always had- the reuse of culture.
These cultural representers- the lawyers behind the administrators, behind
the agents, behind the artists- have succeeded in mining every possible
peripheral vein of monetary potential in their art properties. All this is
lobbied into law under the guise of upholding the interests of artists in
the marketplace, and Congress, with no exposure to an alternative point of
view, always accommodates them. 


That being the case, there are two types of appropriation taking place
today: legal and illegal. So, you may ask, if this type of work must be
done, why can't everyone just follow the rules and do it the legal way?
Negativland remains on the shady side of existing law because to follow it
would put us out of business. Here is a personal example of how copyright
law actually serves to prevent a wholly appropriate creative process which
inevitably emerged out of our reproducing technologies. 


In order to appropriate or sample even a few seconds of almost anything
out there, you are supposed to do two things: Get permission and pay
clearance fees. The permission aspect becomes an unavoidable roadblock to
anyone who may intend to use the material in a context unflattering to the
performer or the work involved. This happens to be exactly what we want to
do. Dead end. Imagine how much critical satire would get made if you were
required to get prior permission from the subject of your satire? THe
payment aspect is even a greater obstacle to us. Negativland is a small
group of people dedicated to maintaining our critical stance by staying
out of the corporate mainstream. We create and manufacture our own work,
on our own label, on our own meager incomes and borrowed money. Our work
is typically packed with found elements, brief fragments recorded from all
media. This goes beyond one or two, or ten or twenty elements. We can use
a hundred different elements on a single record. Each of these audio
fragments has a different owner and each of these owners must be located.
This is usually impossible because of our fragmentary nature of our
long-ago random capture from radio or TV does not include the owner's name
and address. If findable, each of these owners, assuming they each agree
with our usage, must be paid a fee which can range from hundreds to
thousands of dollars each. Clearance fees are set, of course, for the
lucrative inter-corporate trade. Even if we were somehow able to afford
that, there are the endless frustrations involved in just trying to get
lethargic and unmotivated bureaucracies to get back to you. Thus, both our
budget and our release schedule would be completely out of our own hands.
Releases can be delayed literally for years. As tiny independants,
depending on only one release at a time, we can't proceed under those
conditions. In effect, any attempt to be legal would shut us down. 


So OK, we're just small potato heads, working a way that wasn't foreseen
by the law, and it's just too problematical, so why not just work some
other way? We are working this way becuase it's just plain interesting,
and emulating the various well worn status-quo isn't. How many artistic
prerogatives should we be willing to give up in order to maintain our
owner regulated culture? The He directions art wants to take may sometimes
be dangerous, the risk of democracy, but they certainly should not be
dictated by what business wants to allow. Look it up in the dictionary-
art is not defined as a business! It is a healthy state of affairs when
business attorneys get to lock in the boundaries of experimentation for
artists, or is this a recipe for cultural stagnation? 


Negativland proposes some possible revisions in our copyright laws which
would, very briefly, clear all restrictions from any practicew of
fragmentary approriation. In general, we support the broad intent of the
copyright law. But we would have the protections and payments to artists
and their administartors restricted to straight-across usage of entire
works by others, or for any form of usage at all by commercial
advertisers. Beyond that, creators would be free to incorporate fragments
from the creations of others into their own works. As for matters of
degree, a "fragment" might be defined as "less than the whole". to give
the broadest benefit of tdoubt to unpredictability. However, a simple
compilation of nearly whole works, if contested by the owner, would not
pass a crucial test for valid free appropriation. Namely: whether or not
the material used is superceded by the new nature of the usage, itself- is
the whole more than the sum of its parts? When faced with actual examples,
this is usually not difficult to evaluate. 


Today, this kind of encouragment for our natural urge to remix culture
appears only vaguely within the copyright act under the "Fair Use"
doctrine. The Fair Use staues are intended to allow for free approriation
in certain cases of parody or commentary. Currently these provisions are
conservatively interpreted and withheld from many "infringers". A huge
improvement would occur if the Fair Use section of existing las was
expanded or liberalized to allow any partial usage for any reason.(again,
"the whole is greater than the sum of its parts" test.) If this occuured,
the rest of copyright law might stay pretty much as it is,(if that's what
we want) and continue to apply in all cases of "whole" theft for
commercial gain, (bootlegging entire works). The beauty of the Fair Use
Doctrine is that it is the only nod to the possible need for artistic
freedom and free speech in the entire copyright law, and it is already
capable of overriding the other estrictions. Court cases of appropriation
which focus on Fair Use and its need to be updated could begin to open up
this cultural quagmire through legal precedent. 


Until some such adjustments occur, modern societies will continue to find
the corporate stranglehold on cultural "properties" in a stubborn battle
with the common sense and natural inclinations of their user populations. 


                  Please address any comments to:
                           Negativland
                    1920 Monument Blvd. MF-1
                      Concord CA 94520 USA
                        fax 510-420-0469




** Originally received at Negativland concert Los Angeles Roxy theatre, 1993.