when art gets in trouble with the law, and
art gives the law trouble back
It was the first shot fired in the intellectual-property wars—the first one I heard, at least, back in 1991. During a skirmish between Island Records and the sound-collage collective Negativland, the corporate Goliath took aim at the group’s record (titled simply U2) and blew it off the face of the earth. A nerdy, motley crew of San Francisco Bay Area artists, weirdos, and computer programmers, Negativland weren’t even a blip on the pop-culture radar, an unlikely target for a major lawsuit. So what would prompt a huge record company to use its full legal and economic might against an insignificant band? As you may have guessed from Negativland’s album title, they made the mistake of sampling U2’s music, the
crown jewel in Island Records’ multiplatinum crown.
More troubling (to Island, at least) was that fragments of U2’s music commingled with hilarious, gut-busting moments of tongue-tied obscenity by veteran DJ Casey Kasem. “This is American Top 40,” says the congenial-sounding Kasem, “right here on the radio station you grew up with. Pubic Radio 138— OH, FUCK!” The 114
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 115
ILLEGAL ART
115
amazing thing about this recording—which was likely smuggled
out of Kasem’s studio by a disgruntled, abused staff member—is the weird cognitive dissonance it provokes. The same voice that warmly announces innocuous hits by Phil Collins also spews
mouth-foaming, foul-mouthed rants such as “That’s the last fucking time! I want someone to use his FUCKING brains and not
come out of a record that’s up-tempo every time I do a goddamn death dedication!”
Kasem also screwed up his lines in a segment about the Irish
rock band. “That’s the letter U and the numeral 2,” says the host, starting off innocently enough. “The four-man band features Adam Clayton on bass, Larry Mullin on drums, Dave Evans, nicknamed
‘The Edge’—” Kasem suddenly grew agitated. “Wait, this is bullshit.
Nobody cares! These guys are from England and WHO GIVES A SHIT? Just a lot of wasted names that don’t mean DIDDLEY
SHIT!” To add insult to injury, Negativland also mixed in a speech by U2’s lead singer, Bono, which made the self-important Nobel Peace Prize nominee sound pious and ridiculous. Public Enemy’s Harry Allen remembers the first time he heard it. “I was stunned—
amazed—it was so funny,” Allen tells me. “They’re the greatest. I love their political statement, the idea that information should be free and open.”
“We were out on tour and this guy came up to us [after a show]
and he handed us a cassette,” Don Joyce tells me as he sits in the Negativland’s studio in Berkeley, about a dozen years after the record’s release. The Negativland workspace is a tangled mess of cables, audio cartridges and cassettes, analog soundboards, and old computers; it doubles as the sixty-year-old Joyce’s home. The windows are covered to block out the sun so that the most visible things in the room are his silver hair, shaped in a bowl cut, fair skin, and the giant white CIA letters printed on his black T-shirt. “That McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 116
116
FREEDOM OF EXPRESSION®
night at the hotel we listened to it and sorta just fell over laughing. . . . We had never heard it before and it was amazingly funny, so immediately when we hear things like that we say we can make something out of this.”
U2 was released with little fanfare on SST Records, a small independent punk-rock label. But within ten days of its release Island Records and U2’s song publisher, Warner-Chappel, served Negativland with a lawsuit after R.E.M. manager Bertis Downs sent U2’s management a copy of the single, a Negativland member later discovered. Recognizing that they were small fish compared to this oceanic multinational corporation, the group sent out a press release that stated, “Preferring retreat to total annihilation, Negativland and SST had no choice but to comply completely with these demands.” They lost a lot of money. Even worse, their song’s copyright was transferred to Island Records, much like what happened to the Verve when they handed over “Bittersweet Symphony” to former Rolling Stones manager Allen Klein.
Even though Negativland had a strong fair-use argument, pri-
marily based around parody, the Supreme Court had not yet ruled in 2 Live Crew’s favor regarding their spoof of “Pretty Woman.”
Negativland didn’t have the resources to fight a prolonged court battle, and because of pressure from their record company, they agreed to a very unfavorable settlement. “Companies like Island depend on this kind of economic inevitability to bully their way over all lesser forms of opposition,” the group stated in a 1991 press release. “Thus, Island easily wipes us off the face of their earth purely on the basis of how much more money they can afford to waste
than we can. We think there are issues to stand up for here, but Island can spend their way out of ever having to face them in a court of law.” Backed by litigation war chests of millions of dollars, intellectual-property owners can swat away and squash unflattering McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 117
ILLEGAL ART
117
commentary by intimidating those who can’t afford a lengthy court battle (which is most of us).
TRADEMARKING FREEDOM OF EXPRESSION®
If Negativland hadn’t been sued, this book wouldn’t exist. As a teenage hipster-doofus, I admired the group because they held up arty, funhouse mirrors to the media-saturated culture that surrounded me. Their collage aesthetic seemed a natural way of commenting on the world, especially since I had grown up listening to hip-hop. In titling their 1987 album Escape from Noise (the same year Public Enemy released “Bring the Noise”), they were referring to the ubiquitous pop-culture cacophony that blankets us. But instead of literally escaping—living off the grid, so to speak—the group engaged with the world by putting something new and subversive into the media mix.
They were also pranksters. When Negativland couldn’t afford to take time off from their day jobs to tour in 1988, they put out a press release claiming that the FBI had asked them to remain in the Bay Area until an investigation of a multiple homicide was concluded. They claimed that the suspected cause of the murders, a Midwestern teenager’s slaying of his family, was their song “Christianity Is Stupid” (which sampled from an evangelical preacher’s sermon, who sarcastically shouted, now out of context, “Christianity is STUPID, Communism is GOOD!”). Although the murder
was real—painfully real for the victims and extended family, something that makes the prank a bit tasteless—Negativland’s involvement was completely fictitious. “One of the band members, Richard, came up with an excuse for why we couldn’t do the tour,” Don Joyce explains. “He found this article in the New York Times or someplace about a kid who had killed his parents in Minnesota with an ax.”
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 118
118
FREEDOM OF EXPRESSION®
If any media outlets had bothered to call the FBI or the small-town police department, they would have uncovered Negativland’s prank. But local radio and television stations jumped on the story, sensationalizing it even further, until a media snowball formed. No longer in control of events they set in motion, the group sat back and recorded the broadcasts as things grew ever more tasteless, in a way that only an exploitative news media can achieve. Negativland remixed and reworked the news coverage to make a concept album, Helter Stupid, which scrutinized the same media that carelessly examined them. It was similar to what Public Enemy was doing
around the same time—remixing media coverage about themselves on their own records. In both cases, it was a meta-commentary on the echo chamber we call mass media, calling into question the distinction between truth and fiction, information and sensationalism.
Negativland introduced me to two of the major tropes that have dominated my life—media pranks and copyright law—so it’s fitting that the group’s legal problems first inspired me to trademark freedom of expression® when I was an undergrad. A few years later, in 1998, the Patent and Trademark Office granted me my trademark, the same year that Fox News was awarded ownership of Fair and Balanced®. Like Fox’s trademark, my registration doesn’t actually give me full legal control over how freedom of expression® appears in all contexts, for my trademark was filed only under Class 16 of the international schedule of goods and services, which covers
“printed matter”—pamphlets, magazines, newspapers, and the like.
Even though I can’t prevent, for instance, a phone company from using freedom of expression® as an advertising slogan, I could very well keep the American Civil Liberties Union from publishing a magazine with that title. However, I’d never do that to the ACLU.
In my application to the Patent and Trademark Office, I didn’t McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 119
ILLEGAL ART
119
write: “I want to trademark ‘freedom of expression’ as an ironic comment that demonstrates how our culture has become commodified and privately owned.” I simply applied to register this trademark and let the government decide whether or not we should live in a world where someone can legally control freedom of expression®. In filing this application, I crossed the enemy line at the Patent and Trademark Office, feigning allegiance by speaking their slippery language of legalese, fooling them into saying what I hoped wasn’t actually possible.
After I received my freedom of expression® trademark certifi-
cate, I wanted to publicize the event, and I knew just the way to gather a large audience: a media prank. Early in my life I learned how easy it was to manipulate the media into telling my strange little stories. When I was a junior at James Madison University, I gained local and national media attention when I attempted to change the school mascot to a three-eyed pig with antlers, a movement that culminated in a rally where I married one hundred people to bananas in front of TV news cameras on the JMU commons.
A few years later, I got a lot of press coverage when I sold my soul in a glass jar on eBay, being quoted saying things such as “In America, you’re rewarded for selling your soul and compromising your principles. I may not have a soul, but I have a new car, and I’m doing great.”
Pranks, for me, aren’t the same as hoaxes. Hoaxes are what they are: they use deception to make someone or something look foolish, and nothing more. Media pranks, on the other hand, involve cooking up a story or an event in order to make a larger, satirical point. For instance, 1960s radicals Abbie Hoffman and Jerry Rubin dumped hundreds of dollar bills from a balcony overlooking the New York Stock Exchange, causing trading to stop as brokers
grabbed at the money that was falling from the sky. Hoffman and McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 120
120
FREEDOM OF EXPRESSION®
Rubin invited reporters to cover the event, which was designed—
ingeniously and hilariously—to peel back the Stock Exchange’s blanket of respectability to reveal the naked greed that bubbled un-derneath.
I figured that the media wouldn’t be able to pass up a story about someone threatening to sue another for the unauthorized use of freedom of expression®. The problem was I didn’t really want to sue some innocent infringer who used my trademark. So I enlisted my high-school prankster friend, the Reverend Brendan Love, who posed as the publisher of a fictitious punk-rock magazine named Freedom of Expression. I hired a lawyer, who wrote Brendan a cease-and-desist letter, soberly stating, “Your company has been using the mark Freedom of Expression. . . . Such use creates a likelihood of confusion in the market and also creates substantial risk of harm to the reputation and goodwill of our client. This letter, therefore, constitutes formal notice of your infringement of our client’s trademark rights and”—this is my favorite part—“a demand that you
refrain from all further use of Freedom of Expression.”
When talking to reporters who responded to a press release I
sent out, I played the quasi-corporate asshole to Brendan’s indignant anarchist underdog, spouting poker-faced lines such as “I didn’t go to the trouble, the expense, and the time of trademarking freedom of expression® just to have someone else come along and think they can use it whenever they want.” Brendan countered that I was an “opportunist.” The venerable western Massachusetts
newspaper the Hampshire Gazette published an article with a headline that read, “Freedom, and Expression of Speech”—a story that played up the inherent absurdity of someone successfully trademarking freedom of expression®. I wanted to reprint a chunk of the Hampshire Gazette article in the introduction to my first book so as to expose the purpose of my prank to more people. But when I ex-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 121
ILLEGAL ART
121
plained in a letter that it was a “socially conscious media prank,” the paper’s editor wouldn’t allow me to reprint the article. In fact, he didn’t bother composing a letter, instead scrawling on my own dis-patch, “Permission Denied ,” and mailed it back to me.
I was completely naive and perhaps more than a little stupid. I assumed the folks at the Hampshire Gazette would be irritated with my deception, but at the end of the day I honestly thought they would grant me permission, given the slant and the content of their own story. In my first book’s introduction, however, I was able to point out the fact that the Hampshire Gazette used copyright law to prevent me from reprinting its own story that was about how
intellectual-property law restricts freedom of expression®. But the little saga didn’t end there. After my book, Owning Culture, came out in 2001, the publisher of a very smart magazine of cultural criticism called Stay Free! contacted me. Carrie McLaren was putting together an art show entitled Illegal Art: Freedom of Expression in the Corporate Age. She wanted to include my framed freedom of expression® certificate in an exhibit that featured art and ideas that pushed the envelope of intellectual-property law. I was flattered to discover that among the many great artists included in the show, Negativland was involved.
Serendipitously, at that time I was teaching an undergrad course on intellectual-property law. One of my students, Abby, brought in a copy of an AT&T ad from the Daily Iowan that used the slogan
“Freedom of Expression”—WITHOUT MY PERMISSION—to
lure college students into signing up for their long-distance plan.
My class told me I should sue AT&T, and we all laughed, and I said,
“Sure.” Soon I realized that the synergy of the art show, the publicity it was generating, and my own freedom of expression® project was too perfect not to exploit. I hired a lawyer in Iowa City, gave him my government documents, and a copy of the ad, and he
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 122
122
FREEDOM OF EXPRESSION®
drafted a cease-and-desist letter addressed to AT&T (just as the company would’ve done to me if I stepped on their trademarked toes).
It’s important to note that I had no real case. My trademark
didn’t protect the phrase in the context of advertising, just as Fox News wasn’t able to prevent its trademarked slogan from being used as the title of Al Franken’s book. I was overreaching, much as overzealous corporate bozos so often do when they try to muzzle freedom of expression®. Conspiring with the Chicago organizers of the Illegal Art show, the good folks at In These Times magazine, I used the show’s opening as a press conference to publicly announce my scheme. The New York Times broke the story and others picked it up, including the U.S. government’s overseas broadcasting
arm, Voice of America (which allowed me to air my critiques of intellectual-property law all the way to Afghanistan). AT&T never did respond to, or worry about, my lawyer’s cease-and-desist letter.
Although I didn’t prevent AT&T from using freedom of expression® without my permission, my media prank did succeed in
broadcasting to millions a critique of intellectual-property law that wouldn’t normally get national or international attention.
ART PRANKSTERS
Political and artistic pranks stretch back to the European Dada movement of the early twentieth century and beyond. In fact, Abbie Hoffman wasn’t the first revolutionary American prankster; that title belongs to Ben Franklin. He was at his most clever and hilarious when he authored Poor Richard’s Almanac. An unknown writer at the time, Franklin goaded a more established almanac writer, Titan Leeds, into a ridiculous public dispute that would anticipate the over-the-top pranks of the Dadaists. In his first almanac, published McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 123
ILLEGAL ART
123
in 1732, Franklin created a fictitious “author” named Richard Saunders. The advertisement published in the Pennsylvania Gazette stated that Poor Richard’s Almanac would announce “the predicted death of his friend Titan Leeds.” Franklin/Saunders narrowed it down not just to the date, but to the exact second when three planets aligned (“October 17, 1733, 3 ho., 29 m., P.M. at the very instant of . . .”).1
This enraged Leeds, who didn’t take kindly to a prediction of his own death by someone who wasn’t his friend. In next year’s Poor Richard’s Almanac, a bestseller because of this mini-scandal, Franklin/Saunders wrote that he had been “treated in a very gross and unhandsome manner” by Titan Leeds. “Mr. Leeds was too well bred to use any man so indecently and so scurrilously,” he wrote,
“and moreover, his esteem and affection for me was extraordinary.”
Franklin wouldn’t let it go, writing in the 1735 edition of his almanac, “I say, having received much abuse from the ghost of Titan Leeds, who pretends to still be living . . . I cannot help but saying, that tho’ I take it patiently, I take it very unkindly.” He continued, arguing that because the real Leeds would never have treated him so poorly, this proved that in fact he was dead. “And whatever he may pretend, ’tis undoubtedly true that he is really defunct and dead.”2
When Leeds finally did die in 1738, Franklin wouldn’t throw in the towel. He printed a letter from Leeds’s ghost admitting that “I did actually die at that moment, precisely at the hour you mentioned, with a variation of 5 minutes, 53 seconds.” He then had Leeds’s ghost issue one more prediction: John Jerman—another
one of his competitors in the almanac market who had also hired Franklin as a printer—would convert to Catholicism. This was an outrageous claim, especially in a time of anti-Papist prejudice. After four years of Franklin needling him in print, Jerman took his business to another printer. Until his final breath, Franklin engaged in McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 124
124
FREEDOM OF EXPRESSION®
similar pranks. His last published piece was under an assumed persona, of which he had at least one hundred throughout his life. Under the pseudonym “Sidi Mehemet Ibrahim,” he wrote letters to newspapers with an ironic, over-the-top zeal favoring slavery, letters meant to shame American slave owners.3 Ben Franklin: American Hero? American Weirdo?
Many of the strategies Franklin used—humor, irony, scandal—
were shared over a century later by a European group of political artist-pranksters, the Dadaists. These early-twentieth-century aesthetic anarchists aimed to destroy both bourgeois capitalism and Romantic ideas about art—and had a good time trying. They celebrated the liberating potential of “chance” as an artistic method, which was a direct reaction to the “civilized rationality” that resulted in World War I. From chance emerged collage. “They cut up photographs,” wrote early Dadaist Hans Richter in a lively first-person account of early Dada, “stuck them together in provocative ways . . . to confront a crazy world with its own image.”4
The way he talks about the emergence of photomontage echoes
the way Negativland describe their sound collages. “One of Negativland’s artistic obsessions,” said the group in their book Fair Use,
“involves the media, itself, as a source and subject for much of our work. We respond (as artists always have) to our environment, an environment increasingly filled with artificial ideas, images, and sounds.” Just as Negativland liberated their sound sources from a fixed context, the Dadaists gave letters, words, and sentences a new kind of freedom. These activities were similar to a critical practice that French theorist Jacques Derrida would call deconstruction fifty years later. This strategy is carried out by an active reader/writer who disobeys the wishes of, as Derrida slyly puts it, “those authors whose death does not await their demise.”5
Dadaists were passionately devoted to turning artistic ideas into McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 125
ILLEGAL ART
125
action, and wanted their art to impact the social, economic, and political world. They hated and endlessly ridiculed the idea that the artist should be detached from daily life, which was promoted by the Romantic movement. The collage method was an excellent tool that undercut the Romantic ideal of originality, a weapon that also quite easily lent itself to the prankish nature of the Dadaists. Tristan Tzara, a principle Dadaist provocateur, gave instructions on how
“to make a Dadaist poem” in which the creator takes a newspaper, cuts out words from an article and places them in a bag only to be randomly pulled out. It was a humorous polemic that made fun of high-minded Romantic notions of originality and creativity. Tzara sarcastically concluded:
The poem will resemble you.
And there you are—an infinitely original author of charming sensibility even though unappreciated by the vulgar herd.6
The Futurists, another group of European artist madmen who
preceded the Dadaists by a few years, were also interested in the possibilities of textual collage, particularly in its potential for delivering their pro-war propaganda. Conversely, the Dadaists used collage as a political and artistic tool that broadcasted their leftist antiwar views. Although there were aesthetic similarities between the Dadaists and the Futurists, they had very different worldviews, which was perhaps best summarized in the Futurist Manifesto: “We will glorify war—the world’s only hygiene—militarism, patriotism, the destructive gesture of freedom-bringers, beautiful ideas worth dying for, and . . . will fight moralism, feminism, every opportunistic or utilitarian cowardice.”7
Where the Futurists were artsy, chest-beating libertarian yahoos with paintbrushes and guns, the Dadaists reacted against the rav-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 126
126
FREEDOM OF EXPRESSION®
ages of the war that the Futurists promoted. As was to be expected of a group that embraced chaos, Dadaism imploded by the early 1920s. Surrealism arose from Dada’s ashes with the printing in 1924
of La revolution surrealiste, published by Surrealist figurehead An-dré Breton. Surrealism embraced the subconscious, privileging it as an irrational road away from a “rational” civilization that had almost slaughtered itself. This movement brought a new interest in collage, in part because Breton saw these techniques as opening up new sources of “unreal reality” for art.8
More than anything else, the Dadaists were serious jokers (and perhaps even midnight tokers). “We destroyed, we insulted, we despised—and we laughed,” reminisced Richter. “We laughed at
everything. We laughed at ourselves just as we laughed at Emperor, King and Country, fat bellies and baby-pacifiers. We took our laughter seriously.” This laser-guided hilarity, which was aimed directly at, to use the 1960s counterculture term, “the establishment,”
was a reaction to the bloody times. “Pandemonium, destruction, anarchy, anti-everything,” Richter wrote, “why should we hold it in check? What of the pandemonium, destruction, anarchy, anti-everything of the World War? How could Dada have been anything but destructive, aggressive, insolent, on principle and with gusto?”9
The Dadaists reveled in their twisted media pranks. For instance, Tristan Tzara and Jean Arp were at the center of a scandal that rocked Swiss newspapers when they convinced reporters that they fought each other in a duel. Numerous members of Swiss society surely would have been happy if they had both Dadaists died, so that part of the story wasn’t scandalous. The fury came from the fiction that the “universally popular sentimental poet” J. C. Heer was involved. Many, wrote Hans Richter, “wondered how a sedate figure like J. C. Heer, who was not in the least eccentric, could possibly have become involved in such goings-on.” Just as Titan Leeds McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 127
ILLEGAL ART
127
did when Ben Franklin goaded him into a public row in the papers, Heer approached the papers with a furious disclaimer, stating that he had never been involved in such nefarious activities. Richter sets the scene:
On the evening of the same day there was a disclaimer of the disclaimer. Its first paragraph caused a sigh of disappointment to be heard all over Zurich; neither of the combatants had been hurt (the report said that they had both fired in the same direction—
away from each other). The second paragraph plunged the
reader into total confusion. Two witnesses (both Dadaists, it is true) announced that they understood of course that a respected figure like J. C. Heer did not wish to be associated with the stormy quarrels of youth, but that respect for the truth forced them to say (with a polite bow in the direction of the revered poet) that he had been there.10
Dadaists’ art was in the act of living, and so was their revolution.
They mocked and molested bourgeois society with prankish acts that knocked art off its pedestal; they wanted to dismantle the museums and turn the streets into galleries.
ART AND EVERYDAY LIFE
Marcel Duchamp, while widely remembered as a pioneering artist, was equally a prankster—the two couldn’t be disentangled. In 1913
he left the painting world behind after displaying his Nude Descending a Staircase, which was alternately referred to as a “masterpiece”
or, more derisively, an “explosion in a shingle factory.” That year, Duchamp displayed his first ready-made, Bicycle Wheel; it was the culmination of Dada’s anti-art aesthetic. A ready-made, according McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 128
128
FREEDOM OF EXPRESSION®
to Duchamp, is something torn from daily life and turned into art by the artist’s simply being audacious enough to call it that. “As early as 1913,” Duchamp deadpans, “I had the happy idea to fasten a bicycle wheel to a kitchen stool and watch it turn.” A couple of years later, in another example of found and self-defined art, he bought a shovel at a New York City hardware store and wrote “in advance of the broken arm” on it.11
With Fountain, his most famous ready-made, Duchamp bought a mass-produced urinal and signed on its white porcela