(3089/898) Entering Negativland

2234) Congress shall have the power [...] [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries [...]

Constitution of the United State
Article I, Section 8 (Powers of the Congress)

2235) One basic failing of the U.S. legal system is that it treats the plaintiff and the defendent [sic] as though they are equally powerful entities, regardless of the actual resources each might have. Further, it disregards the fact that the cost of preparing a legal defense for a trial is prohibitively high - unthinkable for any entity other than a wealthy individual or a good-sized corporation. Thus, when a corporation goes after a small business or low-income individuals, the conflict automatically rolls outside of the court system because of the defendent's [sic] inability to pay the costs of mounting a proper defense. The matter is resolved by the more powerful organization threatening to press the suit back into the courts unless the smaller party agrees to their terms unconditionally. The powerful crush the weak. Note that all of this is purely a power relationship, essentially without regard to the legality of the issue, let alone the morality.

Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills)
"U2 Negativland: The Case from Our Side"
press release (11/10/1991)
Fair Use: The Story of the Letter U
and the Numeral 2 (1994)

2236) True folk music [...] 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.

Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills)
"Fair Use"
Fair Use: The Story of the Letter U
and the Numeral 2 (1994)

2237) If the amount of control now being exerted over the ownership of our culture had existed from day one of human kind, we wouldn't have art and music the way we know it at all.

Mark Hosler
quoted by Tony Fletcher in
"The Letter U, The Numeral 2, and a Fistful of Lawsuits"
Creem (4/1993)

2238) Mockingbirds are the true artists of the bird kingdom. Which is to say, although they're born with a song of their own, an innate riff that happens to be one of the most versatile of all ornithological expressions, mockingbirds aren't content to merely play the hand that is dealt them. Like all artists, they are out to rearrange reality. Innovative, willful, daring, not bound by the rules to which others may blindly adhere, the mockingbird collects snatches of birdsong from this tree and that field, appropriates them, places them in new and unexpected contexts, recreates the world from the world. For example, a mockingbird in South Carolina was heard to blend a song of thirty-two different kinds of birds into a ten-minute virtuoso display that served no practical purpose, falling, therefore, into the realm of pure art.

As the couple walked up to their Buick, two mockingbirds flew away from its grill, one of them tweeting in a little-known dialect of goldfinch, the other mixing a catbird with a raspy chord borrowed from a woodpecker. For centuries, mockingbirds had hunted live insects and foraged for seeds, but when motorcars began to appear in numbers on southern roads, they learned that they could dine more easily by simply picking dead bugs off the radiators of parked autos. Mockingbirds. Inventing new tricks to subsidize their own expression. Artists!.

Tom Robbins
Skinny Legs and All (1990)
quoted by Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills)
Fair Use: The Story of the Letter U
and the Numeral 2 (1994)

2239) Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.

Judge Kozinski
dissenting opinion in
Vanna White v. Samsung Electronics
U.S. Court of Appeals for the Ninth Circuit (3/18/1993)

2240) [A]lmost all popular [music] compositions bear some similarity to prior works. It is often difficult to separate originality from quotation in popular music. A successful pop song typically balances elements of familiarity and novelty. Pop songwriters frequently pay tribute to their peers and predecessors via allusion, pastiche and mimicry, making it difficult to determine exactly which elements in any given pop song are original. Furthermore, most popular music derives from a variety of musical traditions. Rock and roll "borrows" extensively from black music, country music, folk and Tin Pan Alley. Rap music too borrows heavily from funk, soul, free jazz and the avant garde. [...] Throughout history, classical composers drew liberally from folk music, popular music and even directly from their peers. But while musical language has an extensive repertoire of punctuation devices, there does not exist a musical equivalent to literature's use of quotation marks.

Alan Korn
"Renaming That Tune: Audio Collage,
Parody, and Fair Use"
22 Golden Gate University Law Review 321 (1992)

2241) First Amendment protections do not apply only to those who speak clearly, whose jokes are funny and whose parodies succeed.

J. Leval
Yankee Publishing v. News America Publishing
809 F. Supp. 267,280 (SDNY 1992)
quoted by Justice Souter in
Luther R. Campbell AKA Luke Skywalker et al
v. Acuff-Rose Music
Supreme Court of the United States (3/7/1994)

2242) The most influential distinctions in the music world today, after racists and sexist categorization, is between the familiar and the unknown. The common critical declensions of artistic experience are likable (as in "I know what I like"), boring and weird.

John Oswald
interviewed in
"Taking Samples Fifty Times Beyond the Expected" in
Musicwork's Magazine (1990)

2243) If creativity is a field, then copyright is the fence.

John Oswald
quoted by Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills) in
"Copyright, Fair Use, and the Law"
Keyboard (6/1994)

2244) If copyright is a fence, then fair use is the gate.

Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills) in
"Copyright, Fair Use, and the Law"
Keyboard (6/1994)

2245) Whenever there is [...] profound divergence between law and social practice, it is not society that adapts.

John Perry Barlow
"The Economy of Ideas"
Wired (3/19934)

2246) We believe that artistic freedom for all is more important to the health of society than [...] private copyright tariffs which create a cultural climate of art control and Art Police. No matter how valid the original intent of our copyright laws may have been, they are now used to censor resented works, to suppress the public need to reuse and reshape information, and to garner purely opportunistic incomes from any public use of previously released cultural material which is, in fact, already publicly available to anyone. The U.S. Constitution clearly shows that the original intent of copyright law was to promote a public good, not a private one. No one should be allowed to claim a private control over the creative process itself. This struggle is essentially one of art against business, and ultimately about which one must make way for the other.

Negativland
(Chris Grigg, Mark Hosler, Don Joyce, David Wills)
"Negativland's Tenets of Free Appropriation"
Fair Use: The Story of the Letter U
and the Numeral 2 (1994)

2247) I think [copyright] ownership should extend to the entire work only. In other words, copyright and ownership of a song means that no one can use the song, or cover that song, without paying the artist - because that' the artist's work [...] but [...] I would totally eliminate any concept of ownership [for fragments of the whole].

Don Joyce (member of Negativland)
"Negativland Interviews U2's 'The Edge'"
Mondo 2000 (6/1992)

[Note: Some of the above articles can be found on Negativland's web site, which has a large collection of information on copyright and fair use issues. See here for an account of the "U2 incident" which lies behind these quotations.]