textfiles/law/bendix.txt

From: tsdavies@mothra.syr.EDU (T.S. Davies)
Newsgroups: rec.arts.books,rec.music.makers,rec.music.misc,rec.music.synth,rec.arts.misc,rec.arts.fine,rec.music.funky,rec.music.industrial,rec.music.compose
Subject: Crosley Bendix (Negativland) Discusses The Copyright Act
Summary: Transcript of the CD accompanying _The Letter U And The Numeral 2_
Keywords: Copyright,Negativland,U2,lawsuit,reform
Message-ID: <TSDAVIES.92Nov9233538@mothra.syr.EDU>
Date: Mon, 9 Nov 92 23:49:06 EST
Organization: Sam Hill Cabal, DS
Followup-To: misc.int-property
Lines: 385


The following is the text of the compact disc accompanying
Negativland's publication, _The Letter U And The Numeral 2_, which
discusses the lawsuit filed against Negativland and SST Records by
Island Records, Warner-Chappell Music, and Casey Kasem.

It proposes a revision of the United States Copyright Act to allow the
reuse of portions of material released for public consumption.  I have
given this article a fairly wide initial posting, with followups
directed to misc.int-property, which seems to be the most appropriate
group for discussion to take place in.  If you change the followup
line to something obscure, I'd appreciate it if you'd let me know by
sending me e-mail -- I do read most of these groups regularly, and I
will be checking the rest for a while after posting this.

You may also want to change the distribution to something less
all-encompassing than "world".  But I felt that there may be
sufficient international interest to justify an initial worldwide
posting.

I have no connection with the band, nor with any of the other
particpants in the lawsuits, outside of an interest in Negativland's
music, and interest in the copyright revision proposal presented here.
As this is a transcription, I am wholly responsible for any
typographical or grammatical errors in the text.

This message may be reproduced in any form whatsoever, with no
restrictions imposed on it by me.  All copyright rights reversed.

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Transcript begins.
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Negativland
_The Letter U And The Numeral 2_
"39.  Crosley Bendix Discusses The Copyright Act"
(25'56" compact disc.)

ANNOUNCER: And now, Crosley Bendix, cultural reviewer and director of
stylistic premonitions for the Universal Media Netweb, with today's
Arts Review.

SAMPLE: <It's crazy; it's dangerous; it is almost stupid.  It's crazy;
it's dangerous.>

CROSLEY BENDIX: Good hello, again.  While browsing through an
automated cassette dispenser at a Czechoslovakian airport recently, I
suddenly noticed a name I recognized among the wares -- mine!

There it was, Crosley Bendix.  The title was, ah, uh, "This Affects
You," or something to that effect.  And a closer inspection showed
this to be a bootleg cassette of some of my broadcasts.  I suppose
they're out there right now, huddled around a squawking international
shortwave receiver in some filthy hut on Taiwan, taping everything I'm
saying on a low-end Payless cassette for volume two.

Well, even though I'm not getting a cent for the sales of those
bootlegs, the rules of this show don't allow me to complain.  Yes, for
better or worse, this radio program, _Over The Edge_, and every form
of distorted sound it contains, always has been, and always will be,
in the public domain.  Copyright free.  Raw material for your reuse.

Here it is, week after week, available for duplication, remixing, or
editing of any kind, by anyone, for any reason.  If you can find a way
to make a buck off anything you can capture off this radio show, go
right ahead, it's all yours, or anyone else's!  No permission or
clearance of any kind is necessary, to do anything you want with _Over
The Edge_ broadcasts.  I hope that's clear.  Of course, you just can't
beat the studio air check compilations of _Over The Edge_ that
Negativland puts out, but, go ahead and try!  There's just way too
much for them to ever get to, anyway.

So, here we are, a tiny but persistent island of free noise, with
unrestricted exploitation encouraged, in a vast salt sea of culture
now so choked and inhibited by copyright protections that the very
idea of mass culture is now primarily propelled by economic gain and
the rewards of ownership.

The lawyers behind the managers behind the artists have succeeded in
mining every possible vein of opportunity when it comes to the
monetary potential of art properties.  And nowhere is this American
obsession for all-encompassing private ownership more perverse in its
effect on culture than in music.

True folk music, for instance, no longer exists.  The original folk
music process of actually incorporating previous melodies and lyrics
as it evolved through time is no longer possible in modern societies,
where melodies and lyrics are privately owned.

Ah, yes, return with me now to those thrilling days of yesteryear,
before the present overabundance of law school graduates began
promoting more laws to entangle more people in order to pay their
upscale consumer bills.  Before the practice of sharing in the use of
our culture became bought by corporations or withheld in private
hands.  Before we went off the gold standard.  Before Atlantis sank
and the survivors went to Egypt... No, that's too far.  That would
throw me right into the incredibility of a different cultural review
we just don't have time for now.  Well, never mind.  Come back to the
present and let's start over.  And that would be my suggestion to
Congress, as well.  

And here is another thing I would suggest to Congress: It is now time
to drastically revise the outmoded copyright laws, particularly with
regard to the content of electronic media -- meaning anything that is
experienced via reproducing equipment the public possesses.

The revision of copyright protections is now necessary, because media
artists of every variety have long since left Congressional intentions
of cultural ownership in the rearview mirror.  This, I believe, is as
it should be.  But, in doing so, today's artists are driving their
sporty little art illegally.  They can be pulled over and sent to
debtor's prison because their only license is an artistic one.

Yet these vehicles of appropriation present no menace of any kind to
the general population.  The only supposed threat is to the
unsatisfiable greed of an extreme minority of private cultural owners.
The reason for today's repressive cultural traffic laws is based
purely on economic control, and, as such, serves to keep many artists
off roads they need to be exploring.  The significant urge to
incorporate found sound into contemporary music, for instance, is now
in virtual gridlock -- on the way to a drawbridge that's always up.
We should be giving our artists a wide open freeway through an
environment full of media influences, but this route is being 
aggressively denied by "art cops" working for the self-serving
marketing system that has imposed itself on culture.

What am I driving at?  The undeniable wisdom of letting artists -- not
business interests -- determine what art will consist of.  The need
for various arts of appropriation should be obvious.  Artists have
always seen the entire world around them as both inspiration to act
and as raw material to mold and remold.  For most of this century,
artists, like everyone else, have been subject to a growing media
environment.  Today, we are surrounded with canned ideas, images, and
sounds.  My television set told me that seventy to eighty percent of
the population now gets most of their information about the world from
their television set!  Large increments of our daily perceptions are
not supplied by the physical reality around us but by the media that
saturates it.  Both the content and the programming techniques of
electronic media have inspired the current art trends of
appropriation, but it's nothing new.

Any serious observer of modern music can cite a multitude of examples
-- from Buchanan and Goodman's humorous collages of song fragments in
the fifties to today's canonization of James Brown samples -- wherein
artists have incorporated the actual property of others into their own
unique creations.  The whole histories of folk music and the blues are
typified by creative theft.  Jazz and rock are full of this, too.  In
the visual arts, there is a longstanding tradition of found image
collage, from Schwitters and Braque to Rauschenberg and Warhol.  This
is a twentieth century mode of artistic operation that is now nothing
short of dramatic in its proliferation, in spite of all the
marketplace laws designed to prohibit it.

It is important to note that this mode of operation has continued to
grow in artistic relevance as its major source of inspiration -- the
media environment -- has continued to grow.  Appropriation isn't
limited to any medium, and it doesn't fade away as mere styles do.
Appropriation's major jump from visual work to audio work in recent
years only underlines the emotional relevance of the technique.
What's going on here?  I believe it has to do with deep stuff like
media saturation and the opportunity for self-defense against media
coercion that appropriation engenders.  It also has to do with the
Surrealist/Dada concept of detournement.  In modern terms,
appropriation is often about culture jamming -- capturing the
corporately-controlled subjects of the one-way media barrage,
reorganizing them to be a comment upon themselves, and spitting them
back into the barrage for cultural consideration.  A sometimes nasty
(but wholly appropriate) response to a society in decline and denial.

At the very least, appropriators are claiming the right to create with
mirrors.

Corporate culture is trying to reach the end of this century
maintaining their skewed view that there is something wrong with all
this.  But, perceptually and philosophically, it is an uncomfortable
wrenching of common sense to deny that once something hits the
airwaves, it is literally in the public domain.  The fact that the
owners of culture and its material distribution are able to claim this
isn't true is a tribute to their ability to restructure common sense
for maximum profit.

But art is what artists do, and we can only hope for laws that
recognize this.  Just as the dictionary recognizes new words -- even
slang -- that come into common usage.  Until then, we are stuck with
copyright laws which were designed solely by publishing interests and
cultural manufacturers who maintain virtually unopposed lobbyists in
Congress to ensure that their present stranglehold on the reuse of
culture will remain intact.  These cultural representors claim to be
upholding the interests of artists in the marketplace.  And Congress
-- with no exposure to an alternative point of view -- always
accommodates them.

A more generous and enlightened approach to copyright law would have
it prohibit straight-across bootlegging, provide cover version
royalties, and practically nothing else.  Virtually all the volumes of
statutes which now go far beyond this are not only unnecessary, but
counterproductive to the now common practice of piecemeal
appropriation in the creation of new work.

The crucial difference between simply bootlegging entire works in
order to profit from someone else's creativity and the creation of new
work which incorporates elements of existing work for the referential
or commentary effects thus produced must be made clear to lawmakers.
The present "broad brush" of copyright law is acting to censor what
artists want to do.  Not a desirable role for government.

Culture is more than commerce.  The law should begin to acknowledge
the artistic domain of various creative techniques which may actually
conflict with what others claim to be their economic domain.  Art
needs to acquire an equal footing with marketers in court.  The
question that must rise to the surface of legal consciousness now is:
At what point in the process of found fragment appropriation does the
new creation possess its own unique identity, which supersedes the sum
of its parts, thus gaining its own right to legally exist?

The media and electronic publishing industry's argument that
appropriation equals ripoff is truly irrelevant.  Unlike bootlegging,
appropriation in no way prevents an artist from profiting from his or
her own work through every form of sale which would normally occur.
Beyond that, it is only greed and opportunism which assumes that
others' partial or fragmented use of that work -- being no part of the
original artist's efforts -- should additionally profit that artist.
It is simply unearned gravy, existing only because of another's
efforts to begin with.

A revamping of copyright laws envisions a more free-wheeling and
referentially unconstricted art world.  This, of course, would be a
lawyer's nightmare of lost work and layoffs.  But for the culture at
large, it would be a vast improvement.  For instance: if you are
making a movie and want to use a section of a song in the soundtrack,
you wouldn't need to clear it and you wouldn't need to pay the artist.
You would be free to put that fragment in your work whether it appears
to be a favorable context to the publisher or the artist or not.
However, if you wanted to use the entire song in your movie -- a
complete self-contained creation by another -- or put out a soundtrack
album with the complete song on it, then you would need to clear it
with the artist and pay royalties.  The difference between referencing
a fragment of a publically available cultural artifact, and presenting
that artifact as a complete and self-contained performance should be
the defining guideline for artist profit.

In such a world, when an artist releases his or her work for public
consumption, they would not only receive the benefit of public sales;
they would also give up what now amounts to undeserved control over all
forms of public use of that material.  If they want to operate in the
"public domain," those would be the consequences.

To say that artists and their companies and their companies' lawyers
would suffer some kind of devastating economic hardship by the loss of
all this second-hand, uninitiated income from outside sources is no
longer tolerable when our very process of cultural evolution is now so
straightjacketed by opportunistic claims of ownership that it amounts
to censorship.

Art is not defined as a business.  Let me repeat that: Art is not
defined as a business.  The reuse of culture should be encouraged, not
inhibited and litigated.

Today, our entrenched copyright, publishing, and cultural property
laws stand as a monument to private greed.  They need to be brought,
kicking and screaming, into our real world of modern capturing
technology and find a comfortable accord with the artist's healthy and
inevitable impulse to incorporate public influences.

Well, by now you're probably saying, "Wait a minute, Mr. B!  This
thing has turned into some kind of totally serious manifesto, grant
proposal sort of thing.  I didn't pay top dollar for this bootleg in
order to get a lecture.  Aren't you supposed to be funny, sort of?"

Well, <laugh> <belching noise> I am, sort of.  And that's my very next
point.  Appropriation, by its very nature, often results in something
funny.  And funny can be just as important in life and culture and art
as all that serious stuff that will get you ideological followers or a
grant.  Let's find out by putting aside all this theoretical rhetoric,
and turning to the experiential reality of what I may or may not be
describing.  I have here a, ah, a demonstration tape.  An example of
found sound appropriation and transformation.  And here it is:

[4'48" of assorted cut-together pieces of tape deleted]

Okay, that's it.  I call this a razor tape, because it's made with
only a razor blade.  Quite laborious, sort of interesting.  Eh, not
the greatest thing you've ever heard, maybe, but kind of funny in a
confused sort of way.  Ha.  Maybe it's not finished, I really can't
tell.  It seems to be made out of, ah -- commercials?  Yes, but they're
all mixed up and it's no longer selling anything.  So what's it about
now?  Anything?  Of course!  It's about all the things I've been
talking about.  But how?  What's the purpose?  Well, I purposely chose
this tape because it lacks any obvious pretensions to social
significance.  This tape is not going to deflect our national
obsession with the worship of consumerism, even though it's a twist on
some of the prayers; it's not going to inspire any moral revelations
among corporate policymakers, investment bankers, or politicians; it's
not going to put an enthusiasm for the democratic process back into
our population.  But, maybe even this little effort at nonsense is
worthwhile in some less-definable way, and deserves to exist for less
predictable reasons.  Yet, this little razor tape is entirely illegal
and is not supposed to exist at all, without the permission of the
people who made the original ads.  

Do you think they would have given their permission to do this with
their material?  Do you think the creators of the original ads should
be paid, again, by me, for what I did with their work?  Do you think
you could have heard it today if I had to find them and wait for their
clearance before I could play it?  Do you think you could hear it by
next year?  The year after that?

<sigh> The answer to all these questions is: "No."  There is no way to
make this humorous little tape-edit legally.  And there is no way for
you to hear it legally.  Yet, I did, and you did.  I think no harm was
done.  What do you think?

There are so many musicians and audio artists who are now actively
engaged in various degrees of found sound appropriation that it would
run me right off the end of this tape to name them all.  Oh, let's
see, just one group that comes to the top of my mind is, ah,
Negativland, perhaps you've heard of them?  But, ah, anyway, it's
obvious that appropriation is here to stay, as the ranks of outlaws
continues to grow.  The composing of found sound materials will
continue -- outside existing law -- regardless of threats and lawsuits
and corporate attorneys' retainers, because, it is, of all things,
just plain interesting.  And for artists, the power of interesting
will not be denied.

On behalf of all these creative spirits -- the pirate guardians of
what's left of public consciousness -- this is Crosley Bendix, urging
you, whether you make art, or are in the position of protecting it --
please -- ignore unreasonably restrictive copyright protections.
Because, if the owners of culture do not see the need to encourage a
creative climate in which artists are free to do whatever interests
them, America's epitaph will probably be chiseled in legalese.


SAMPLE: <drum roll> 
What do you want on your Tombstone?

Man: I wrote those ads.  
Another man: Mm-hmm.  
Man: I wrote them.

<music -- female vocal "oo-oohs" plus piano> Yet another man: And the
picture of me was not a picture I gave them, it was a violation of
copyright laws, because they copied it on their VTR machine, with an
off-air feed, it appears...

ANNOUNCER: <over more music> 
You've been listening to cultural reviewer and social critic Crosley
Bendix.

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Transcript ends.
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For more information:
--------------------

The United States Copyright Act is available on-line via a Gopher
server at fatty.law.cornell.edu.  The following lines, added to your
~/.gopherrc file, will allows quick access via bookmarks.

     Type=1
     Name=Copyright Act
     Path=1/lii/copyright/chapter01
     Host=fatty.law.cornell.edu
     Port=70

Negativland can be contacted at:

	Negativland
	1920 Monument Boulevard.  MF-1
	Concord, CA  94520
	510-420-0469  FAX

_The Letter U And The Numeral 2_ should be available from various good
music and bookstores, on the current Knitting Factory Tour, and from:

	Negativmailorderland
	109 Minna #391
	San Francisco, CA  94105

--
	Sam Hill Cabal, DS		   tsdavies@mailbox.syr.edu
"It don't matter, Sail, ... Could be worse.  The fam'ly might be donatin' the
proceeds to the Cath'lic Church, or the Mormons or somethin'.  One cult's the
	same as another." -- Lula Pace Ripley, in "Consuelo's Kiss".