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Negativland's Fair Use... Based on what happened t
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Fair Use
by Negativland
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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 now find 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 art has always 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) 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 law-bound
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 undesirable 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 emotional relevance from beginning to end regardless of
the rise and fall of "style fronts". 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 kind of influence
in the human environment. We are now all immersed in an 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 that 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
irresistibly 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 is 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 barrage.
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 subjected 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 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 work involved. This may happen 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 an even greater obstacle to use.
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 way
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 the fragmentary nature of our long-ago
random capture from radio or TV does not include the owner's name and
address. If findable, each one 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 independents, 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 in 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 because it's just plain
interesting, and emulating the various well-worn status quos isn't.
How many artistic perogatives should we be willing to give up in order
to maintain our owner-regulated culture? The 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! Is it 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 practice of
fragmentary appropriation. In general, we support the broad intent of
copyright law. But we would have the protections and payments to
artists and their administrators restricted to the 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 work.
As for matters of degree, a "fragment" might be defined as "less than
the whole", to give the broadest benefit of the doubt 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 superseded
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 encouragement for our natural urge to remix culture
appears only vaguely within the copyright act under the "Fair Use"
doctrine. The Fair Use statutes are intended to allow for free
appropriation 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 law 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 occurred, 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
restrictions. 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
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If you have any questions about this, please check out our Copyright Policy.
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