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Suits, Lawsuits, and Art: Negativland Takes On The Man

by Deuce of Clubs

(First published in Planet Magazine, 04jul1995)


Legal and ethical questions arising from the growth of modern duplication technology are myriad and manifold. Taping, photocopying, and now digital sampling have forced legal battles to define the limits of what U.S. copyright law terms "fair use." One of the most interesting of these battles has been that focused on the work of the Bay-area band known as Negativland.

Negativland has been making sound collage recordings since the Seventies. Their work, largely concerned with modern media culture, has earned a devoted cult following, yet they went mostly unnoticed by the media itself until they tread on the toes of corporate rock's most favored sons, U2.

Negativland has published a full-sized book called Fair Use, documenting their experience with corporate rock and U.S. copyright law—an experience that has left them deep in debt, thanks to U2, Island Records, and their own former label, self-proclaimed "anti-corporate rock" label SST.

It wasn't the first time the band found itself at the center of a controversy engendered by their interest in the modern mass media and its effects. A previous Negativland album, Helter Stupid, documented an earlier experiment in media manipulation. As Negativland's Mark Hosler sees it, turnabout is fair play. "We're so totally corporatized," Hosler says. "We're so totally enmeshed in a corporate world, whether we realize it or not, that it has become fashion to wear corporate logos on your person." Hosler goes as far as to tear the Levis tags from the backs of his jeans and, when Negativland tours, he covers with duct tape any logo on the band's equipment.

It is media's attempts to disguise its manipulation that Hosler sees as its most insidious threat. The media—especially television—has become so self-referential and self-consciously ironic (think of the "shaky camera" technique pioneered by MTV—a travesty of cinema verite) that its attempts to pretend to be realistic verge on self-parody. Hosler cites the Jack in the Box commercial that consists entirely of scenes of ad executives thinking up ideas for a Jack in the Box commercial. The same sort of pseudo-hep detachment is seen in Sprite's ostentatiously self-deprecating "Obey Your Thirst" commercials. "There are billboards now in the Bay Area that are posing as, pretending to look like, altered billboards!" Hosler complains.

Perhaps the most appalling thing about media manipulation is that there is almost no escape from it—and, because its manipulation is disguised, comparatively few people even realize they should want to escape it. Hosler tells of a Colorado school system that raised operating money by selling wall space for advertising. "So now kids go to school and there are ads for Burger King and 7-Up on the walls. As an art project, the kids helped paint the 7-Up dot on the side of their bus. There's a nice interview with a student there, a senior, who says, `I don't think there's anything wrong with this. I think that these companies are just showing us that they care about us.'"

Negativland decided to fight media manipulation by manipulating the media. "There is so much media now that is just about...itself," Hosler says, citing Douglas Rushkoff's book Media Virus. "[Rushkoff] makes a good point—that if you're trying to inject sort of a virus-like story into the media, one of the best ways to do it is to make it somehow be about the media, because the media finds stories about the media to be irresistible."

Negativland put Rushkoff's idea into action a few years ago when, about to cancel a planned tour because it looked to lose money, the band decided instead to conduct a media virus experiment. As raw media material, they took a then-current news story—about a Midwestern teen who murdered his parents with an axe—and distributed a press release claiming that "Federal Official Dick Jordan" forced the tour's cancellation because Negativland's song "Christianity is Stupid" (from the 1987 album Escape From Noise) was suspected to have influenced the young murderer. The virus spread more effectively than they could have guessed: once the Negativland/teenage axe-murderer story had penetrated one media source, it spread to others as rapidly as any biological virus. Their hoax was so successful, in fact, that they finally confessed partly to stop the phone from ringing.

Part of the cause of media viruses is the media's lack of willingness to take responsibility for its own reporting, it being much safer (and easier) to rely on others. If a rumor gets into The New York Times, the next day the same story appears in another news source, only now the rumor gains credence because it's prefaced with "The New York Times reports...." As the liner notes to Helter Stupid put it: "The Chronicle prints an article...but gets many of the `facts' wrong as a result of their dependence on other media stories as their only source material. It's now abundantly clear that the major source for news is other news."

The success of hoaxes like Negativland's demonstrates that the media is not reality, that in fact it does not even necessarily reflect reality. "We all swim in an ocean of mass media that fills our minds with people and events with which we have no actual contact at all," Hosler says. "We commonly absorb these media presences as part of our own 'reality,' even though any media experience consists only of one-way, edited representations of reality."

No real trouble resulted from the axe-murder hoax. Other than a television station that tried to get a college station to stop playing the record because it contained unauthorized taping of their newscasts, no one complained about Helter Stupid, according to Negativland member Don Joyce. The members of Negativland themselves "never heard from anybody," he says. "No. Oh, wait, yeah ... I think we got one letter, from David Brom's attorney. And his only complaint, I believe, was the picture on the cover—again. But we did nothing about, never responded, did nothing, and nothing ever happened."

Unfortunately, the same cannot be said about the single U2/Negativland. Having one-upped corporate journalists, Negativland would soon face a more difficult foe in corporate lawyers—as a breed, every bit as stupid as journalists (hard as that is to imagine)—and far more powerful.

Ironically, the impetus for U2/Negativland was not U2 at all, but the perenially cheerful Casey Kasem. A fan slipped the band a tape of "American Top 40" outtakes that captured Kasem at less than his sunshiny best: as it turns out, scratch a poor man's Dick Clark, get a poor man's Lenny Bruce. On the tape, after a dedication for someone's dead dog named Snuggles, Kasem rails at his staff:

Okay, I want a goddamned concerted effort to come out of a record that isn't a fucking up- tempo record every time I do a goddamned DEATH DEDICATION! It's the LAST goddamned time! I want somebody to use his fuckin' BRAIN to not come out of a goddamned record that's up-tempo and I gotta talk about a fuckin' DOG dying!

It is Kasem's workmanlike ability to bounce in and out of his cheerful radio persona that makes the tape so irresistible, especially to media-hounds Negativland. They decided to combine the Snuggles material with another Kasem outtake where he lambastes the then up-and-coming U2: "This is BULLSHIT! Nobody CARES! These guys are from England, and who GIVES a shit!?" "I know [from] other people who collect outtakes, that the "dead dog" Snuggles tapes are pretty widely circulated," Hosler says, "but the U2 stuff—we've never head of anyone who has that. We seem to be one of the only people who have those tapes."

(Not that such uncouth behavior from Kasem is unusual. I have yet another crop of Kasem outtakes that Hosler hadn't heard of, with Kasem cursing and shouting his way through seemingly endless radio promos littered with difficult call letters and nonsensical station slogans. "'Getting it set for Westmoreland County,' Kasem muses. "What the FUCK is that supposed to mean?")

The resulting single, U2/Negativland, turned out to be the band's best work, in Hosler's opinion, "in terms of encapsulating in a nice, neat package everything that I think is interesting about what we do." Then he adds in a sad old man voice, "That's why it hurt me lose that little baby!"

You see, you won't find U2/Negativland in your neighborhood record store. Not even in your grocer's freezer. You see, Negativland had made a crucial error in judgment. Partly to find out whether fans would be able to distinguish their record from a genuine U2 record, they made sure that the U2 on the cover of the record dwarfed the word Negativland. As it turned out, one of the first to notice that U2/ Negativland was not a U2 record was the legal department at Island Records—U2's record label. Before you could say "Can't you take a joke?" Island had deposited a lawsuit on Negativland's doorstep. Without, by the way, the knowledge of Bono and the boys—not that it mattered, as Hosler explains.

"At one level, U2 is just these four guys making some music. But they're also not that at all. They're so huge that it becomes something else entirely. They're like Coca-Cola. As a commodity, as a corporately manufactured and distributed entertainment commodity, they—to me—become totally legitimate targets and you don't have to worry about what their feelings are or ask permission or anything."

Naturally, Island's battery of fine legal minds saw things a bit differently.

The irony is that at the same time that Island was suing Negativland, U2 was taking its "ZOO-TV" tour around the world, illegally incorporating live satellite feeds into their video-driven stage show, a circumstance Hosler finds particularly galling.

"We were both doing the exact same thing!" he says. "[U2] should have turned around and gone to their label and said "Goddammit, if you don't stop this [lawsuit] right now, there'll be hell to pay! We won't deliver you any more records, we'll break our contract, we'll cancel the tour!" They should've gone and done something very serious. But they aren't about to do that. They claim they had no sway over Island, but of course the truth is they just weren't willing to play hardball over some little piddly record."

For all their "subverting the media" talk during the ZOO-TV tour, U2 chose not to throw their support behind Negativland. "It's become totally mainstream to say that you're not mainstream," Hosler says. "It's become a mainstream corporate style and tactic to sell things to people who are alienated and unique and different. `You're not like everyone else; that's why you want to buy OK Soda.'"

During a surprise interview in MONDO 2000 (parts of which are included in Sonic Outlaws), Hosler and Joyce confronted The Edge with the contradiction. Though he was good-natured and gentlemanly, The Edge didn't seem to fully appreciate the irony of the situation. "I don't know, gosh, these guys don't have the highest IQs," Hosler sighs. "I don't know to what degree they understand what's going on."

In the course of pleading their case to The Edge, Hosler and Joyce even asked him for a loan. He was amused and even expressed interest, but he never called back. "It would've been the easiest thing in the world to do, you know?" Hosler says. "Write us a check, lend us $20,000. It would have been just an amazingly cool and hilarious thing, musician to musician, working together to figure this thing out."

Details of Island's suit against Negativland are recorded in Fair Use, but what eventually happened is that Negativland's label, SST, immediately caved, agreeing to terms with Island, terms that called for the band—not their label—to shoulder all of Island's legal costs. That, coupled with the confiscation of all copies of the U2/Negativland single, put them in a financial tailspin that accelerated when they were sued by Greg Ginn, head of SST. "Gregg Ginn sued us for copyright infringement for reprinting A PRESS RELEASE!" Hosler marvels. "I mean, that is totally goofy! But he did that, I think, knowing that we had no resources to fight him."

But Negativland did keep fighting. They wanted their record back.

"It was like playing this big chess game, or more like negotiating for captured hostages or something," Hosler says. Negativland pestered everyone concerned—especially U2 and their management—with so many phone calls, faxes, and letters that "what eventually happened was that it turned into so much bad press for them that they finally did kind of change their minds. But that's only after we hammered them for three years! " U2's management finally realized that it might be useful to be seen as being on the side of the little guy, and suddenly everyone in the U2 camp publicly claimed to like the single they had tried to sue out of existence.

Privately, however, it's another story, as Hosler learned. "Even McGuinness, who publicly has now said he thinks our record's funny, ha-ha-ha and all that—I've talked to Irish writers who've spoken to him off the record, and they say, `No, he hates you guys. They just think Negativland are assholes and they just wish you guys were dead! They do not like you. They do not think this is funny. They are never going to say that, though. They intensely resent that you have continued to be a thorn in their side.'"

Negativland's legal troubles are past now (though their financial troubles are far from over). As far as Island and U2 are concerned, Negativland is free to re-release U2/Negativland. There's just one condition: they must first secure the permission of Casey Kasem—which Kasem refuses to grant them. (Kasem's letter to the band, in which he gives his reasons for his refusal, is reproduced in Fair Use.)

Kasem has since been deluged by Negativland fans pleading for him to sign the release form. One fan even made death threats. I asked whether at any time during the ordeal Negativland ever considered sparing Kasem's feelings and just writing off their record. "No—I don't care about someone else's feelings at all," Hosler says. "What we could be concerned about is...a bunch of millionaires as part of a giant multinational company...then you kind of go, well, we better think about this...!" (There is in fact a court injunction against the band tampering with any more U2 music—violation could mean jail time for contempt of court.)

Did any of the members of Negativland say at any point, "Well, gee, I can kind of see Island's point of view," or was it pretty much a united front all the way? Joyce answers immediately: "Oh no—we were offended by this theft of our record." When I point out that even U2 would have to appreciate the irony of that statement, Joyce laughs. "Oh, I know, [but] they don't...they have never thought about this. From that point of view, I can understand. They're a huge, worldwide, bureaucratic corporation, and basically they're run not by creative people but by accountants and lawyers and people who know how to make money. As a company, they aren't thinking about art, they aren't thinking about culture, they aren't thinking about their role in it. They are a business, they're in it for the profit. If they cease to make a profit, they'd go out of business, they wouldn't stay in it just to promote art. So I understand this kind of thinking. It's just a knee-jerk kind of thing: "This can't be allowed!"

In all likelihood, Island probably expected the whole suit to be over in a day. They probably weren't expecting a band with an articulated position. "I don't think they ever were aware that there was a— quote—position," Joyce says. "They thought that they had the laws on their side, history's on their side, the whole business community's on their side. Everybody's doing the same thing, basically, and they've never come up against opposition."

Unfortunately, Negativland didn't realize they could get pro bono (yet more U2 irony) legal help until after the settlement of Island's suit against them. Is Negativland disappointed about not getting the chance to fight it out in court? "Yeah—now," Joyce says. "In hindsight, yes. See, at that point we didn't know anything about the law, so it all looked to be a very expensive hassle that we had no chance of winning. I didn't know that there was a case that could be made on the other side. And neither did our [former] label, SST. They didn't have the money. So everybody just caved in." But Joyce is certain what the outcome would have been. "We could have won that case. Not the issue of the cover, but the issue of the contents. That's a clear case of what 'fair use' does allow."

To the question of whether Negativland has "learned its lesson"—whether they will be more likely to question future material from a legal standpoint, Joyce admits, somewhat sadly, "Yeah, to some degree we probably will. It's just hellish to get sued."

Hosler, however, remains staunchly defiant. Negativland's next project—an EP involving a certain worldwide soft drink powerhouse—would suggest that Negativland has emerged from their legal fight undaunted and unrepentant. Says Hosler, "I don't think we'll, we'll never 'learn our lesson.'"

© Deuce of Clubs

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