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Thieves Like Us

“Everything about it is appealing! Everything the traffic will allow!” belts a recorded Ethel Merman for the gazillionth time this century, before she suddenly trips into a cut-and-paste stutter. “Nowhere can you get that happy feeling! When you are stealing! When you are stealing! Stealll-ling!”

This moment of aural collision emanates from the dimly lit audio equipment of Negativland, grand patriarchs of sound-collage satire. The San Francisco--based collective’s recent tour, which visited Los Angeles‘ El Rey Theater, was a masterpiece of sonic and visual loopery, borrowing and re-contextualizing some of America’s most entrenched pop culture. Often described by their own self-coined term “culture jammers,” the group‘s 20-year modus operandi is to point out commercialism’s insidiousness by displacing it, wrenching pop icons from their usual comfy context so they‘re out in the light and viewed anew. That Merman recording’s been seeping into our collective unconscious for decades, and Negativland‘s self-appointed job is to shake it out.

“Let’s go! On with the stealing!”

Negativland has dedicated its lengthy career to the art of thievery. After all, you can‘t re-contextualize a snippet without having a snippet to re-contextualize, and most mega-corporations won’t grant official permission for you to tweak them. With or without licenses (and usually without), Negativland‘s crafted collages have shot down stalwarts like Pepsi, corporate radio and the rock band U2, whose record label’s ire was sufficiently raised to cease-and-desist Negativland‘s 1991 “U2” single into eBay purgatory.

The ensuing debacle gained Negativland some notoriety, turning the band into experts on legal gray areas such as fair use, parody and copyright infringement. In 1993, during the U2 aftermath, Negativland’s Mark Hosler gave an interview to Paperback Jukebox, where he predicted the following future:

“Eventually you‘ll be able to put CD-quality sounds up on the Internet and people will be able to download it anytime they want. It doesn’t matter how hard you try to own it, control it or legislate it, the technology has gotten away from them. Of course I‘m being optimistic, but I think that the [copyright] laws are going to become outmoded.”

Hosler’s prescience is noteworthy. New upstart file-sharing technologies, the best-known of which is the MP3, have us close to perfecting digital reproduction of CD-quality sound. Yet, while Napster developer Shawn Fanning was born around the same time Negativland formed, MP3-sharing programs like the one Fanning created are now helping turn Hosler‘s hypothesis into a cold, hard and worrisome reality. If, as the record business once fretted, “home taping is killing the music industry,” some see MP3 sharing as the final dagger through its heart -- a thought that anti-corporate types like Negativland would appear to relish.

In part, they do. “Anything that cuts the legs out from underneath the giant corporate cultural producers, I’m all for,” says Hosler. “If it scares the hell out of them, I think it‘s great.”

But it’s the third part of Hosler‘s prediction, how to appropriately revise those pesky copyright rules, that’s naggingly up for discussion. Though Negativland has long called for an overhaul of copyright law, seeking exemption for fragmentary usages like those in its own work, there‘s still the underlying premise of copyright as a means to financially compensate creators. With music fans swapping files as fast as their modems can gulp them down, the old-school record biz with its high CD prices is far out of the loop, but those traditional record labels have mechanisms to pay artists royalties -- something peer-to-peer file sharing doesn’t currently provide. Some artists fear that, if Napster-type programs displace traditional CD purchasing, they‘ll no longer be making a living, and there’ll be less art for everyone.

“How do we get paid?” wonders Hosler. “We make very, very little money doing what we‘re doing. If we made even less, we’d be screwed. We‘re just dinosaurs. We’re operating under the old model [of distribution] too.”

This is an ironic state of affairs, since Negativland -- along with fellow partners in clearance-free culture jamming like Evolution Control Committee (whose 1999 “Rocked by Rape” single liberated audio of Dan Rather and ACDC) and John Oswald‘s ongoing Plunderphonics project -- has created entire manifestoes based, in varying degrees, upon musical theft. Negativland sells T-shirts that read, “Copyright infringement is your best entertainment value.”

Most fair-users, including Negativland, make a strong distinction between re-contextualization (what they do) and piracy (what a thief does). Piracy is the wholesale copying of an entire artwork (a song, a film, a book), reaping profits duly owed to the work’s rightful creator. But re-contextualizing involves taking just a snippet of someone else‘s art -- never a work in total -- and reusing it within an entirely new piece, often to comment directly upon the original work. It’s an art form that predates copyright law: The entire folk-music tradition is based upon embellishing previously existing songs.

 

“Music should be treated more like a science,” says Robin Rimbaud, who, under the name Scanner, is known for integrating stolen cell-phone conversations and other found sounds into his music. “In science, when you work, you research one area and take information from [another] area, and so on. People carry on taking ideas from other places and combining them and seeing what you come up with. It‘s like a potion you’re mixing up.”

“Our motto is ‘Fair use for collage,’” says Negativland‘s Don Joyce. “As a broad term, ’collage‘ covers all the various recycling and reuses of existing material. It’s taking fragmentary samples from somewhere else and putting them in your stuff, making something new with it. The technique of collage has to be distinguished from whole-work theft, which is what copyright law is all about.”

Many concerned artists believe that file-sharing programs such as Napster fall squarely onto the piracy side, since they supply users with tools to obtain complete songs without paying for them. “I have full admiration for the dynamic of [these programs],” admits Rimbaud, “yet, at the same time, I‘m disappointed. This person wrote to me and said, ’It‘s great your work’s online, because it promotes it all the more.‘ And I said, ’Well, one or two tracks is fine, but the whole record? Do you really think that‘s fair?’”

Elizabeth Brooks, vice president of Napster, sees no reason for artists like Rimbaud to be worried. Regarding Napster downloads‘ alleged cutting into record sales, Brooks says, “I haven’t seen any evidence that speaks to that.” Though file sharing is rampant, it hasn‘t been proved conclusively to be a substitute for traditional hard-copy music sales -- in fact, according to the Recording Industry Association of America (RIAA), shipments of recorded materials were up last year, even following Napster’s introduction. “I‘ve seen the promotional benefits of the Internet,” notes Brooks, “but I’ve never seen documentation of any damage to record sales. The industry‘s very healthy right now. Online sales are up. Offline sales are up.” a

Whether file sharing is indeed piracy or not is now being famously considered by Metallica, among the first high-profile artists to take anti-Napster legal action. While the band filed a lawsuit against the company in May, they also released a statement that their concern is the unauthorized trading of commercially sold master recordings, not the swapping of otherwise-unavailable live bootlegs that they’ve allowed fans to trade freely for years.

In the past, Metallica have also lent implicit support to re-contextualizing uses of their work. Canadian collagist John Oswald has been rearranging Metallica music in various Plunderphonics projects since 1989, first without the band‘s knowledge, but eventually with their approval. Although his first Metallica reconstruction, a piece called “Net” from 1989’s Plunderphonic, was done without the band‘s involvement or consent, Oswald was soon working in cahoots with their label, Elektra Records. Elektra had approached Oswald to create a second Plunderphonic-ed Metallica piece, “2Net,” to accompany their 40th-anniversary Rubaiyat compilation. After that, says Oswald, “I found out that the guys in Metallica were fond of the things I had done,” and he began talks with the band’s management for a since-aborted third Metallica piece, which would have also involved the Kronos Quartet.

So if certain uses are okay with Metallica, what is it about Napster that has them so up in arms?

“Money,” says Oswald. “Metallica seemed to be in favor of creative activity, even if it might involve using their work without their permission. At that time, they were very vigilant about what the business was around them. But it was obvious that there wasn‘t any business around, because I wasn’t selling records.”

Then again, if, like all of Oswald‘s Plunderphonics CDs, you’re giving away your work for free anyway, the idea of MP3 as a distribution system suddenly seems pretty appealing. It‘s also a heck of a lot cheaper than pressing thousands of potentially infringing discs. Philo T. Farnsworth, who set up the covert Illegal Art label specifically to shield copyright-violating artists, has actually made back the costs of producing his best-known project, the self-explanatory Deconstructing Beck CD. But most collage work doesn’t have such a high level of revenue-generating public interest, which is where the low overhead of MP3 distribution makes sense.

“It‘s potentially very good for a label such as mine that’s not oriented toward profit,” says Farnsworth. “I have a couple of projects right now that haven‘t recouped their costs yet, and if they were MP3-only that wouldn’t be an issue. I could release a lot more music.”

 

File sharing‘s also a great way to redistribute your legally quashed projects. The official Plunderphonic CD is no longer available, having had the kibosh put on it by the Canadian Recording Industry Association (CRIA). This was at the request not of Metallica but of Michael Jackson and Sony Music, who were probably peeved at the cover art depicting Jackson’s head on a nude female body. Oswald agreed to halt distribution of the self-funded work, but, just to make sure, CRIA demanded the masters and all remaining copies, which they immediately destroyed.

“My position right from the beginning,” says Oswald, “was that I would give copies away free to anybody who wanted them. They were just a bit greedy. They wanted all of them.”

Oswald recalls a quote from Brian Robertson, president of CRIA: “He said, ‘Well, if we hadn’t stopped Oswald now, who knows what would have happened? What would have happened if he had distributed millions of these things?‘” Oswald laughs. “Somehow he imagined I’d get the resources to distribute millions of them.”

It seemed prohibitive at the time, but Oswald sure has those resources now, thanks to the Internet. And utilizing them is quicker and easier than ever. Unlike traditional CD distribution, where a copyright holder can recall and destroy copies of violating materials, digital files can be shared ad infinitum by both creators and fans -- just one determined user with a copy of a cease-and-desisted tune can be the catalyst for an eventual wide dissemination. Negativland‘s “U2” single, for example, can often be found on Napster, as well as on the band’s own Web site.

One particularly crafty distribution method is known as the “Napster Bomb,” which was originally lobbed by the Ohio-based Evolution Control Committee. Eerie Materials, the tiny label that originally released “Rocked by Rape,” began receiving some unfriendly letters from Dan Rather‘s employer, CBS. With an Eerie Materials principal readying to move out of the country, the label, unprepared for a lengthy legal battle, opted to avoid trouble and delete the single from its catalog. But, proud of its work and concerned that “Rocked by Rape” would vaporize, Evolution Control Committee turned to Napster to get the tune out. The only problem was that, even after a year of unfettered existence, “Rocked by Rape” wasn’t exactly well-known, and few Napster users initiated a search for it.

Thus the Napster Bomb. ECC began offering “Rocked by Rape” on Napster under a variety of misleading labels, so that users downloading what they thought were songs by better-known acts such as Beck, Aphex Twin and Sonic Youth opened their files to hear “Rocked by Rape” instead. “You‘re exploiting the fact that Napster only allows you to search for the file name,” explains ECC founder Mark Gunderson. “However, the file name is not explicitly tied to the content of the file.” An internal tag within the MP3 file reveals the correct information.

“Grassroots promotion” is how Napster’s Brooks terms the bombs. “That‘s a great thing for any struggling young band. File-sharing technology, by its very peer-to-peer nature, is dependent on what the members of the community choose to name their files. It’s kind of an inherent complication in using a file-sharing application: You‘re gonna get mislabeled files, you’re gonna get prank files, and that‘s fine. It’s part of the fun.”

Whether or not you find the whole scenario any fun (“If I spent 45 minutes downloading this thing, only to find it‘s some goofball band from Ohio, I’d probably be a little bit pissed,” admits Gunderson), it‘s here and its legalities are far from settled. But one benefit of the whole mess to culture jammers is that issues of intellectual property and fair use, discussion of which these artists have been raising for years, are being forcibly brought to the surface by new file-sharing technologies.

And, in a way, it’s gone further over the edge than many artists ever imagined. “It kinda makes my life a little bit easier,” notes Illegal Art‘s Farnsworth, “that there’s this huge battle going on about whether someone has the right to make a full-on copy of something. It makes what we do seem pretty innocent.”#

WHERE TO HEAR THESE WORKS ON THE WEB:

Negativland: www.negativland.com

Evolution Control Committee: www.evo lution-control.com

Illegal Art: www.detritus.netillega lartbeck

Plunderphonics: www.interlog.com ~vacuvoxx.html

Or on a Napster server near you.


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