ILLEGAL ART
143
ing line of the Mattel v. MCA Records decision, the judge stated,
“The parties are advised to chill.” Unfortunately for Utah-based artist Tom Forsythe, he didn’t have a big company to protect him.
Commenting on the unrealistic beauty myth and consumer cul-
ture, Forsythe jammed nude Barbie dolls in kitchen appliances and photographed them, calling the series Food Chain Barbie. “I put them in a blender,” said Forsythe, “with the implication they’re going to get chewed up, but no matter what, they just kept smiling.
That became an interesting commentary on how false that image is.” Mattel sued Forsythe, and after five months of looking, the ACLU and the San Francisco law firm of Howard Rice Nemerovski Canady Falk & Rabkin defended him pro bono. This meant he wasn’t billed for his lawyer’s time, though the process is far from free. It takes lots of money to hire expert witnesses, file court documents, and do the extensive legal searches necessary to defend oneself against a trademark lawsuit.
As more and more of what we look at, the physical space where we stand, and what we hear becomes privatized, it becomes increasingly difficult for artists to reflect on and interpret our world.
“We’re living in this commercial culture,” curator Carrie McLaren tells me. It was a few hours before her traveling Illegal Art Show opened at San Francisco MOMA’s Artist Gallery, which featured Forsythe’s Barbie photographs as well as my freedom of expression® certificate from the Patent and Trademark Office. “It’s all privatized. It really hampers your ability to be able to talk about what’s going on in the world if you can’t talk about things that are privately owned because, well, that’s just about all there is.” Before the twentieth century, she points out, “Corporations weren’t the central institutions that they are now. So people would make art about religion and whatnot, things that were more central to culture.”
In the early 1990s, the Berkeley Pop Culture Project documented McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 144
144
FREEDOM OF EXPRESSION®
that Mickey Mouse’s image was the number-one most-reproduced
in the world, Jesus was number two, and Elvis had the number-
three spot. Only one of these guys isn’t fiercely protected by an intellectual-property owning juggernaut, and that’s because the Son of God had the unfortunate timing to be born long before such laws existed. Artists have always based their art on the things that dominate the popular consciousness, and it just so happens that Elvis, Barbie, Ronald McDonald, and others are the ubiquitous icons of our time. When John Lennon infamously declared at the height of Beatlemania that they were bigger than Jesus, he wasn’t saying they were better or more important. He was just stating a fact.
Todd Haynes’s first movie, Superstar: The Karen Carpenter Story, appropriated the easy-listening music of the Carpenters (as well as Mattel’s most prized trademark, Barbie). The director, who went on to make Safe and Far from Heaven, cast the doll in the leading role for his short student film about the tragic pop star who died of anorexia. “There were a lot of connections,” Todd Haynes told Graffiti Magazine, “like the idea of the Barbie doll as this kind of icon of femininity that seemed very fitting.” Rather than being a smirky, ironic take on Karen Carpenter’s sad story, it’s a moving human drama that critiques our obsessive culture of thinness. Unsurprisingly, both Mattel and Richard Carpenter (her brother, who was unsympathetically represented as a Ken doll) made it impossible for the 1987 film to be legally distributed. “Richard in particular has a lot of stake in controlling the way people look at the story,”
Haynes said.25
“Intellectual-property lawsuits limit the scope of artistic expression in such a way these days because everything’s branded,”
Forsythe points out. “If you want to comment on society today, you’re using somebody’s brand if you’re at all in touch with reality.”
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 145
ILLEGAL ART
145
In the end, Forsythe’s lawyers spent almost $2 million defending him, reminding us that freedom of expression® can come with a hefty price tag. “I knew for a fact that I was protected under the fair use doctrine,” Forsythe told the Boston Globe. “What I didn’t know was just how difficult it would be to press that case.”
“A lot of people have asked us,” Carrie McLaren tells me, “ ‘Oh, are you trying to get sued by doing this exhibit?’ And nothing could really be further from the truth.” Carrie can’t afford a lawsuit. She’s a high-school teacher in Brooklyn and the publisher of Stay Free!
magazine, a small respected publication that is done more for love than profit. “I mean, the last thing I want to do is get sued.” It’s this fear of legal retribution that creates a chilling effect that can lead to self-censorship. Jessica Clark, the managing editor of In These Times, a political magazine whose offices provided the site for the Illegal Art show in Chicago before its visit to San Francisco, vividly described her uneasiness as a host. Clark wrote:
Could we get sued? That was my first reaction when I read a recent New York Times report on Illegal Art: Freedom of Expression in the Corporate Age, the art exhibit coming to the In These Times offices. Law professor Edward Samuels claims that “half the exhibition is in violation” of copyright law. Paul McCartney’s
spokesman, meanwhile, suggests that the show’s organizers are akin to media pirates. I could already envision the cease-and-desist letters, the harassment, the headaches . . . in a word, I was chilled.
Chilled, but not deterred; the show went on without incurring a lawsuit. As a kind of prank—showing politicized art in the Dada tradition—the Illegal Art show won a small victory for freedom of expression® by committing repeated acts of copyright civil disobe-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 146
146
FREEDOM OF EXPRESSION®
dience. It provoked a lot of media attention but no lawsuits because it forced copyright-owning companies into a catch-22 situation. If they tolerated the existence of the show, it would set an important precedent that demonstrates that fair use does exist in practice, that artists and musicians shouldn’t be scared of overzealous copyright bozos. Or at least should be less scared. If anyone tried to sue the show’s artists, organizers, or venues, it would have generated a bevy of bad publicity for them.
Today, the show’s contents are archived on the Web—at illegal
-art.org—offering free MP3 downloads of Negativland’s U2 single and other banned works discussed in this book. As a multimedia clearinghouse of outlaw sound and video collages, the Illegal Art site’s continuing presence on the Web is very much a political act, a kind of virtual sit-in. I hesitate to even use the terms “copyright civil disobedience” or even “illegal art” for the following reason: The show’s contents are perfectly legal and protected by fair use.
Rather than being an evaluation of their legal status, the term “illegal art” is really just a provocative rhetorical device. In a New York Times article about the exhibit, Jane C. Ginsburg—professor of literary and artistic property law at Columbia Law School, and
daughter of Supreme Court Justice Ruth Bader Ginsburg—stated,
“The irony is that most of the stuff that I see on the Web site wouldn’t be considered illegal.”
When the Supreme Court unanimously found 2 Live Crew not
guilty of copyright infringement, it unambiguously strengthened the fair-use doctrine by establishing case law that many lower-court decisions have cited. “The fair use doctrine,” the high court stated,
“permits and requires courts to avoid rigid application of the Copyright Act of 1976 when, on occasion, such application would stifle the very creativity which the act is designed to foster.” Repeatedly, the Supreme Court and lower courts have emphasized that copyright’s primary purpose is to promote creativity, and they have con-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 147
ILLEGAL ART
147
sistently upheld and expanded the fair-use doctrine. In theory, then, all is fine. The real-world problems occur when institutions that actually have the resources to defend themselves against un-warranted or frivolous lawsuits choose to take the safe route, thus eroding fair use.
In suggesting a remedy for the kinds of horror stories contained in this book, I need to reiterate that, for the most part, we don’t need any new legislation. Fair use is a great solution in the United States, but for it to have any real impact in our culture we need to vigorously and confidently (though not carelessly) employ this legal doctrine in daily life. It’s too bad that a schoolteacher with few material resources should be the one to risk taking a fall, rather than those institutions that can afford it. It’s a sad commentary on our culture. Despite Illegal Art’s small scale and infinitesimal budget, the world is arguably a safer place for collage artists because Carrie McLaren mounted this show.
And in mid-2004 it became even more secure when a federal
judge awarded $1.8 million in legal fees to Tom Forsythe, who could now pay back his lawyers after a lengthy and costly battle against Mattel. The court called Mattel’s case “objectively unreasonable” and “frivolous.” The day after the ruling, Forsythe told me,
“The fee award promises to have real implications for artists who may now be more willing to critique brands and feel more confident that they will have an easier time finding attorneys to represent them. Maybe it will even keep these brand bullies from filing the lawsuits in the first place.”
MIXING IT UP WITH THE SOUND COLLAGISTS
When they first started out, some of the members of Negativland had little knowledge of the rich history of avant-garde sound collage. They were just teenagers making noise. “When we were doing McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 148
148
FREEDOM OF EXPRESSION®
early Negativland recordings,” Mark Hosler tells me, “the television set was mixed in, we played tapes from game shows and interview talk shows, and I’d have a mike outside recording what was going on in our neighborhood.” He elaborates, “You see, I’m a kid, I’ve grown up in a media-saturated environment, and I’m just tuned in to it. I was born in 1962; I grew up watching Captain Kangaroo, moon landings, zillions of TV ads, the Banana Splits, M*A*S*H, and The Mary Tyler Moore Show. When I started messing around with sounds, there was no conceptual pretense at all.”
This reflects the attitude of a great many artists who use collage as a tool to create their art. Not many people consciously say to themselves, “I’m going to deconstruct texts from the media barrage in order to undermine the dominant culture’s ideology.” They just do it because it feels natural. Negativland’s Don Joyce, on the other hand, knew his art-music history. He says from his darkened recording studio, “I went to art school, studied painting, so that’s my whole background. I’m thinking musique concrète, John Cage,
those kinds of people.” Vicki Bennett, who performs under the name People Like Us, is one of the few women who work in the
male-dominated world of sound collage. She also came to the appropriation method through art school, where she made the transi-tion from cutting up photos to collaging sound and video in the late 1980s.
As a young woman in the United Kingdom, Bennett largely lived in an isolated cultural vacuum. “That was before the days of the Internet,” she says, sitting in the sun by the river Thames, “when it’s so easy to do a search for things.” When Mark Hosler came around Vicki’s house in Brighton (looking for someone else), she didn’t know of his group, so he gave her a copy of Escape from Noise. The fact that others were crafting collages legitimized what she was doing, and from there, there was no turning back. Also aware of the McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 149
ILLEGAL ART
149
avant-garde collage tradition are Iowa City–bred sound collagists the Tape-beatles—whose logo is the AT&T “globe” trademark with Mickey Mouse ears. “We were influenced by the French [musique]
concrète musicians,” says Lloyd Dunn, “such as Pierre Henri and Pierre Schaeffer, and a few other modernist composers like Edgar Varese and John Cage.”
In 1952 the incorrigibly experimental Cage composed Imaginary Landscape No. 5, a sound collage he scored specifically for magnetic tape. Earlier, he was interested in the turntable. In his 1937 essay
“The Future of Music: Credo,” Cage argued that we could manipulate the sounds of a record and “give to it rhythms within or beyond the reach of imagination.” Cage was as important as a composer as he was as a theorist, and his contemptuous sneering at Art—with a capital A— made him a worthy successor of the Dadaists. In the same ways Roland Barthes and Jacques Derrida wove into their theorizing a certain rascally subversive edge, John Cage was the master of the straight-faced jeer. His ultimate prank-as-art piece was 4'33'', in which he instructed the “musician” to sit quietly at the piano bench for four minutes and thirty-three seconds. The ensuing uncomfortable rustling and impatient chatter is the music, something that illustrates Cage’s commitment to the notion of chance, a method the Dadaists pioneered.
The late John Cage used Western classical instruments in ways they weren’t intended, similar to the way 1970s hip-hop DJ Grandmaster Flash redefined what the turntable could do. He blew open the doors of the highbrow art-music world, letting in the noise of the outside, blurring art and everyday life. Fittingly, 4′ 33′′ was itself the subject of a prank. Mike Batt made headlines in 2002 for supposedly violating Cage’s copyright when his group the Wombles placed a minute of silence on their latest CD.26 In the press, Batt was indignant, firing off nuggets such as “I certainly wasn’t quoting his McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 150
150
FREEDOM OF EXPRESSION®
silence. I claim my silence is original silence.” He added, “Mine is a much better silent piece. I have been able to say in one minute what Cage could only say in four minutes and thirty-three seconds.” He pulled the Cage estate into the fracas when he credited the minute of silence to Batt/Cage and paid a part of the royalties to ASCAP, which collects money for the composer’s song catalog. Newspapers picked up the story after the wheels of bureaucracy began to blindly turn and the payment was forwarded to Cage’s estate, which cashed the check.
Amazingly, Cage representatives aggressively defended them-
selves. “We had been prepared to make our point more strongly,”
the managing director of Cage’s publishing company told CNN,
“because we do feel that the concept of a silent piece—particularly as it was credited by Mr. Batt as being cowritten by ‘Cage’—is a valuable artistic concept in which there is a copyright.” Most every media outlet took this case at face value, never investigating it as the prank that it obviously was, despite the fact that Batt was clearly using it as a platform to comment on the actions of overzealous copyright bozos. Later, Batt claimed to have registered hundreds of other silent compositions, from one second to ten minutes, including 4'32'' and 4'34''. “I couldn’t get four minutes and thirty-three seconds, obviously, but I got everything else,” said Batt. “If there’s ever a Cage performance where they come in a second shorter or longer, then it’s mine.” Cage obviously would have appreciated Batt’s statement, though he might have smacked his representatives upside the head for being so oblivious.
Heavily influenced by twentieth-century experimental music,
avant-noise-rockers Sonic Youth (under the pseudonym “Ciccone Youth”) also “covered” a John Cage song on their 1988 Whitey album, a side project. It was only a minute of silence, so they jokingly said that it was a “sped up” version of 4'33''. (Today, you can buy this bit of silence on iTunes for ninety-nine cents.) Without asking McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 151
ILLEGAL ART
151
permission, they also sampled Madonna’s “Into the Groove” back when, as group member Thurston Moore put it, “the idea of sampling and its legalities was just brewing.” Ciccone is Madonna’s given last name—hence the band’s alias Ciccone Youth—and the
album cover “sampled” Madonna’s face, blown up as a crude fifth-generation photocopy.
“It was all about sampling her celebrity,” Moore tells me in an e-mail exchange. “We were playing with the idea of sampling in the sense [that] we were already interested in it from an art-world [perspective].” Guitarist Lee Ranaldo tells me, “The art-world history of it—from Warhol to Sherrie Levine and many others—made it clear, if not legal, that it was a valid form of investigation.” Madonna was of particular interest to Sonic Youth because they came out of the same neighborhood and performed in the same downtown Manhattan clubs in the early 1980s. Moore self-deprecatingly described his band as being “too cool for school” at the time, but they were nevertheless “somewhat giddy liking her music.” He adds that their being Madonna fans “was a turnabout, as we had always ditched out of the club before she would perform” because “we always
thought she was corny in her disco b-girl routines.”
Given that Ms. Ciccone went from making out with one of Sonic Youth’s friends to being, well, Madonna, she was a fitting target for commentary. “The stuff spewed out by the media—in this case,
Madonna—was something we felt free to use,” Ranaldo says. The media that surrounds us, he says, “becomes your mind’s property as much as anybody’s, I figure.” The Whitey album, which also sampled from L.L. Cool J and other sources, was an underground record, Moore says, so they didn’t think anyone would notice. And no one did, especially Madonna’s lawyers. When it was re-released a few years later by a major label, Madonna quietly granted permission.
As a student in 1950s Paris, Sonic Youth–favorite Karlheinz
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 152
152
FREEDOM OF EXPRESSION®
Stockhausen was introduced to musique concrète, a technique
whereby fragments of industrial noises, voices, music, and other sounds are edited together on magnetic tape. One of Stockhausen’s strangest (or at least most playful) compositions was Stimmung. In this piece, six vocalists sang a text that was based on erotic poems penned by Stockhausen mixed in with the names of gods and
deities. Soon, these advanced ideas about sound seeped into the world of rock; fittingly, Stockhausen was one of the icons featured on the Beatles’ Sgt. Pepper’s Lonely Hearts Club Band album cover.
On the group’s “I Am the Walrus,” they added a segment of a radio broadcast of King Lear to the collaged layers of sound. Though the play is in the public domain, the performance of the play was copyrighted, but the Beatles were never sued. During this time, and after, Miles Davis applied tape-collage methods to his radical jazz records, particularly In a Silent Way and Bitches Brew. He and his producer at Columbia, Teo Macero, would record jam sessions,
then cut up the tapes and create new compositions, kind of like Stockhausen did.
The most famous example of musique concrète was the Beatles’
“Revolution #9,” the song on the White Album that was voted the worst Beatles song in a Village Voice poll. Yoko Ono introduced John Lennon to magnetic-tape sound collage, and their collaborative piece used dozens of unauthorized fragments from radio, television, and other sources, including sports cheers, screams, baby gurgles, and sirens. Ono wasn’t the grasping groupie that many people thought she was, but rather an artist who was well established long before she met Lennon (they met when he came to her art show). Ono had previously collaborated with Ornette Coleman and John Cage, among others, and she had deep ties with the
Fluxus art movement, which was inspired in part by Dadaism.27
The basic rhythm for “Revolution #9” was built from the sound McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 153
ILLEGAL ART
153
of twenty tape loops pillaged from the archives of EMI, the Beatles’
record label. “We were cutting up classical music and making different size loops, and then I got an engineer tape on which some test engineer was saying, ‘Number nine,’ ” John Lennon recalled.28
Included in “Revolution #9” was a fragment from Sibelius’s Symphony No. 7, and a moment from a performance of Beethoven’s
Opus 80. While the Beatles obviously had the implicit approval to chop up EMI’s material, it’s highly unlikely that the Beatles paid any “sampling” royalties or got permission from the original performers.
Thirty-six years later, in 2004, underground hip-hop artist Danger Mouse produced the Grey Album. He spent over one hundred hours chopping up instrumental fragments from the Beatles’ White Album, matching them with rapped vocals from Jay-Z’s recently released Black Album. Earlier, Jay-Z had released his a capella tracks to the world and challenged DJs to “remix the shit out of it.” Conceptually, the Grey Album is a great idea, but it’s also a fine, listen-able record. “I stuck to those two [the White Album and Black Album] because I thought it would be more challenging and more fun and more of a statement on what you could do with sampling alone,” Danger Mouse told MTV. “It is an art form. It is music. You can do different things, it doesn’t have to be just what some people call stealing.”
Danger Mouse only pressed a limited edition of three thousand copies, but it spread like digital wildfire on file-sharing networks, receiving praise from The New Yorker, The New York Times, and Rolling Stone. College radio stations, such as the University of Iowa’s KRUI, added it to their playlists. Then EMI/Capitol, which owns the copyrights to the White Album, began sending out cease-and-desist letters. In response, the music-industry activists at down hillbattle.org coordinated a major online protest, dubbed “Grey McLe_0385513259_7p_all_r2.qxd 12/17/04 11:54 AM Page 154
154
FREEDOM OF EXPRESSION®
Tuesday,” where at least 170 Web sites risked a lawsuit by hosting the album. That day, nineteen thousand anonymous individuals
hosted the entire album on various file-sharing networks such as KaZaA, and by day’s end another million tracks were downloaded—setting it on par with multiplatinum-selling artists.
Island’s lawsuit against Negativland succeeded in suppressing their U2 record in the pre-Internet days, but EMI/Capitol’s attempt to squelch the Grey Album only made it more broadly available. “It became probably the most widely downloaded, underground indie record,” said Fred E. Goldring, a music-industry lawyer, “without radio or TV coverage, ever. I think it’s a watershed event.”29 Within a couple weeks, the “Jay-Z Construction Set” was available on file-sharing networks, demonstrating it had taken on a life of its own.
The downloadable CD-Rom included Jay-Z’s a capella vocals, instrumental samples, drum breakbeats, and software to mix it all up.
It also included a couple dozen more Black Album remixes (in addition to The Black and Tan Album, someone created The Double Black Album, mixing Jay-Z’s and Metallica’s Black Album).
Even a nation of a million lawyers couldn’t hold these copyright activists back. I was one of the many who received a cease-and-desist letter from EMI/Capitol after I posted the album on my Web site, kembrew.com and refused to take it down. (Oddly enough, minutes after I got the letter, UPS delivered to me a package of free CDs that EMI/Capitol sent me, because I’m a music critic.) One Web-site operator replied to EMI/Capitol’s legal threats by quoting the entirety of the Beatles’ “Piggies,” which goes, in part: “Have you seen the bigger piggies in their starched white shirts” and “In their eyes there’s something lacking / what they need’s a damn good whacking.” In my response, I posted on my Web site an essay about the matter. Later, I added a photograph of me standing in front of the famous rounded Capitol Records building—while giving it McLe_0385513259_7p_all_r2.qxd 12/17/04 11:54 AM Page 155
ILLEGAL ART
155
the middle finger—taken during a trip to L.A. soon after “Grey Tuesday.”
I never removed the Grey Album from kembrew.com, nor did I ever hear from EMI again, which came as a relief to me. I didn’t feel like an “outlaw,” nor was there anything particularly sexy about fretting over a lawsuit. I took that risk because I felt a responsibility to show that fair use exists in practice, not just in theory. For me, it would have been ethically wrong to act as a detached academic while others took the fall, because if anyone could make a fair-use case, it’s me. As a professor who regularly teaches undergraduate and graduate courses on copyright, popular music, and pop culture, it’s important to make some copyrighted materials available without worrying about getting sued. It was in the spirit of promoting conversation and debate about an “illegal” artwork that I engaged in this act of copyright civil disobedience.
The Grey Album was of interest to many journalists, law professors, and media scholars because it is an example of a work that does not fit into an outdated copyright regime. By “outdated,” I mean that there exists no kind of compulsory-licensing system for sampling. Such a system would allow artists to collage fragments of sounds without fear, as long as they pay the copyright owner a statutory fee set by Congress. Art that relies on literal quotation is still at the mercy of the original artist, or, more likely, a layer of managers, lawyers, and accountants. As a result, the Grey Album was yet another example of a creative work that literally had no place in this world; it was stillborn legally, even if it’s very much alive creatively.
Also, when discussing collage, we should not forget fair use. This statute opens a space for artists to freely use elements of copyrighted works as long as the derivative work is transformative or doesn’t freely ride on the presence of the original. If Negativland McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 156
156
FREEDOM OF EXPRESSION®
had the resources to fight the lawsuit brought against them, it’s likely they would have won based on a parody–fair use defense.
When thinking about fair use and the need for a type of compulsory license that regulates sampling discussed in the last chapter, the Grey Album is a rich source for discussion. The amount of material taken from Jay-Z and the Beatles is so large that it seems reasonable that Danger Mouse should pay for his use of it, especially if the CD were commercially available on a wide scale. It’s very hard to convincingly claim that this kind of borrowing is “fair,” so works such as the Grey Album will always fall through the cracks until we modify copyright law.
The Tape-beatles, whose name is a partial nod to the Beatles’
tape experiments, formed in the 1980s and adopted the phrase