Fair Use: The Story of the Letter U and the Numeral 2

by Negativland. 270pp w/CD. (Seeland, 1995).

Sonic Outlaws.

Directed and produced by Craig Baldwin.

San Francisco International Film Festival, 1995.

For those unfamiliar with the story, in 1990, Negativland received a tape of outtakes from Casey Kasem's "America's Top 40" radio program, where Kasem is cursing up a storm while reading a dedication, and then while introducing the band U2. Negativland mixed this together with samples from U2's "I Still Haven't Found What I'm Looking For", as well as from many other sources (in the usual Negativland style), then released it as a single on SST Records with a cover which included a photo of the U2 spy plane, the characters U and 2 in large letters, and the word Negativland in small letters.

Within days, U2's record label, Island Records, filed a lawsuit against SST and Negativland, primarily for copyright infringement. Rather than assume the overwhelming legal costs of going to trial, SST settled the case by withdrawing the record and agreeing to pay Island's legal costs up to the point of the settlement. Legal wrangling has continued since then to determine how much of the costs Negativland would assume from SST and whether the single could be re-released without the misleading packaging.

The book is a collection of news clippings, press releases, legal documents, letters between the involved parties, and essays on copyright philosophy. It provides an unusually complete documentation of the history of the case, that is, it is relatively unfiltered as compared to what you would normally hear about any event from the mass media. Viewed as a narrative, it is a great story, at times absurd or funny, while maintaining tension and suspense, even if you do know the outcome. A highlight is the reprint of Mondo 2000's interview with U2's The Edge, in which the members of Negativland were invited as surprise interviewers and put the Edge on the hot seat (in the end, he almost agrees to give Negativland a loan for their legal costs). The CD which accompanies the book has a number of sound collages related to copyrights, plus a spoken piece on copyright law by Crosley Bendix.

The film splices together interviews with Negativland with clips from Baldwin's vast storehouse of old films, in his trademark found- footage style (a previous found-footage film, Tribulation 99, showed at the SF Int'l Film Festival in 1992). This style is the film equivalent of Negativland's audio collages. The juxtaposition of images can be hilarious, and the subject material is examined from numerous perspectives; in addition to the Negativland story, the film reviews the work of the Emergency Broadcast Network and the Barbie Liberation Organization (see Unit Circle #3).

The philosophical questions in copyright law are "Who owns the images and sounds which surround us?", and "How much control over the use of such material does ownership entail?" Given that we are bombarded by this sensory input, and often not even voluntarily (in the case of advertisements, background music, and so forth), what rights do artists have to appropriate this material for use in creating new works of art? The concept of "fair use" was codified in the Copyright Act of 1976, and declares that copyrighted material can be used for purposes such as criticism, comment, news reporting, teaching, scholarship and research.

It is not clear if Negativland single is legally fair use of U2's work (since the case was settled before reaching any court), but Negativland asserts that anything short of wholesale copying of the original work should be considered fair use, and such an interpretation of the law will stimulate artistic expression. They ask, "At what point in the process of found sound incorporation does the new creation possess its own unique identity which supersedes the sum of its parts, thus gaining artistic license?"

For zine publishers (as well as musicians, filmmakers, and collage artists), copyright law has a special importance. Most zines use imagery copied from old and new magazines, books and newspapers, generally copyrighted material. Usually these images are recontextualized, or manipulated, in such a way to subvert the original meaning of the image. This is a healthy reaction to manipulative effect of the mass media, and should be considered fair use of the material, but few of us would be able to fight a lawsuit if targeted by Time-Warner or Rupert Murdoch.

As things stand, U2 and Island were pressured (by Negativland and their fans) into agreeing to allow Negativland to release the record, provided that Casey Kasem would agree not to sue. Kasem, though an advocate of free speech, understandably has been reluctant to give permission for the single to be released. On the positive side, this incident (somewhat unintentionally) has spurred an important discussion and careful analysis of copyright issues and the effect of the law on creative freedom.

The book is available in bookstores and from Seeland Records. I do not know if or when Sonic Outlaws will be released in theaters or video.