Crosley Bendix Discusses the U.S. Copyright Act
The audio version of this text originally appeared on a 1992 CD that came with Negativland's now unavailable magazine "The Letter U and the Numeral 2". It now appears as track 10 on the CD that comes with Negativland's book "FAIR USE: The Story of the Letter U and the Numeral 2".
ANNOUNCER: <over intro theme music> And now, Crosley Bendix, cultural reviewer and director of stylistic premonitions for the Universal Media Netweb, with today's Arts Review.
SAMPLE: < It's crazy; it's dangerous; it is almost stupid. It's crazy; it's dangerous.>
CROSLEY BENDIX: Good hello, again. While browsing through an automated cassette dispenser at a Czechoslovakian airport recently, I suddenly noticed a name I recognized among the wares-mine!
There it was, Crosley Bendix. The title was, ah, uh, "This Affects You," or something to that effect. And a closer inspection showed this to be a bootleg cassette of some of my broadcasts. I suppose they're out there right now, huddled around a squawking international shortwave receiver in some filthy hut on Taiwan, taping everything I'm saying on a low-end Payless cassette for volume two.
Well, even though I'm not getting a cent for the sales of those bootlegs, the rules of this show don't allow me to complain. Yes, for better or worse, this radio program, Over The Edge, and every form of distorted sound it contains, always has been, and always will be, in the public domain. Copyright free. Raw material for your reuse.
Here it is, week after week, available for duplication, remixing, or editing of any kind, by anyone, for any reason. If you can find a way to make a buck off anything you can capture off this radio show, go right ahead, it's all yours, or anyone else's! No permission or clearance of any kind is necessary, to do anything you want with Over The Edge broadcasts. I hope that's clear. Of course, you just can't beat the studio air check compilations of Over The Edge that Negativland puts out, but, go ahead and try! There's just way too much for them to ever get to, anyway.
So, here we are, a tiny but persistent island of free noise, with unrestricted exploitation encouraged, in a vast salt sea of culture now so choked and inhibited by copyright protections that the very idea of mass culture is now primarily propelled by economic gain and the rewards of ownership.
The lawyers behind the managers behind the artists have succeeded in mining every possible vein of opportunity when it comes to the monetary potential of art properties. And nowhere is this American obsession for all-encompassing private ownership more perverse in its effect on culture than in music.
True folk music, for instance, no longer exists. The original folk music process of actually incorporating previous melodies and lyrics as it evolved through time is no longer possible in modern societies, where melodies and lyrics are privately owned.
Ah, yes, return with me now to those thrilling days of yesteryear, before the present overabundance of law school graduates began promoting more laws to entangle more people in order to pay their upscale consumer bills. Before the practice of sharing in the use of our culture became bought by corporations or withheld in private hands. Before we went off the gold standard. Before Atlantis sank and the survivors went to Egypt... No, that's too far. That would throw me right into the incredibility of a different cultural review we just don't have time for now. Well, never mind. Come back to the present and let's start over. And that would be my suggestion to Congress, as well.
And here is another thing I would suggest to Congress: It is now time to drastically revise the outmoded copyright laws, particularly with regard to the content of electronic media-meaning anything that is experienced via reproducing equipment the public possesses.
The revision of copyright protections is now necessary, because media artists of every variety have long since left Congressional intentions of cultural ownership in the rear view mirror. This, I believe, is as it should be. But, in doing so, today's artists are driving their sporty little art illegally. They can be pulled over and sent to debtor's prison because their only license is an artistic one.
Yet these vehicles of appropriation present no menace of any kind to the general population. The only supposed threat is to the unsatisfiable greed of an extreme minority of private cultural owners. The reason for today's repressive cultural traffic laws is based purely on economic control, and, as such, serves to keep many artists off roads they need to be exploring. The significant urge to incorporate found sound into contemporary music, for instance, is now in virtual gridlock-on the way to a drawbridge that's always up. We should be giving our artists a wide open freeway through an environment full of media influences, but this route is being aggressively denied by "art cops" working for the self-serving marketing system that has imposed itself on culture.
What am I driving at? The undeniable wisdom of letting artists -- not business interests -- determine what art will consist of. The need for various arts of appropriation should be obvious. Artists have always seen the entire world around them as both inspiration to act and as raw material to mold and remold. For most of this century, artists, like everyone else, have been subject to a growing media environment. Today, we are surrounded with canned ideas, images, and sounds. My television set told me that seventy to eighty percent of the population now gets most of their information about the world from their television set! Large increments of our daily perceptions are not supplied by the physical reality around us but by the media that saturates it. Both the content and the programming techniques of electronic media have inspired the current art trends of appropriation, but it's nothing new.
Any serious observer of modern music can cite a multitude of examples-from Buchanan and Goodman's humorous collages of song fragments in the fifties to today's canonization of James Brown samples-wherein artists have incorporated the actual property of others into their own unique creations. The whole histories of folk music and the blues are typified by creative theft. Jazz and rock are full of this, too. In the visual arts, there is a long-standing tradition of found image collage, from Schwitters and Braque to Rauschenberg and Warhol. This is a twentieth century mode of artistic operation that is now nothing short of dramatic in its proliferation, in spite of all the marketplace laws designed to prohibit it.
It is important to note that this mode of operation has continued to grow in artistic relevance as its major source of inspiration-the media environment-has continued to grow. Appropriation isn't limited to any medium, and it doesn't fade away as mere styles do. Appropriation's major jump from visual work to audio work in recent years only underlines the emotional relevance of the technique. What's going on here? I believe it has to do with deep stuff like media saturation and the opportunity for self-defense against media coercion that appropriation engenders. It also has to do with the Surrealist/ Dada concept of detournement. In modern terms, appropriation is often about culture jamming-capturing the corporately-controlled subjects of the one-way media barrage, reorganizing them to be a comment upon themselves, and spitting them back into the barrage for cultural consideration. A sometimes nasty (but wholly appropriate) response to a society in decline and denial.
At the very least, appropriators are claiming the right to create with mirrors.
Corporate culture is trying to reach the end of this century maintaining their skewed view that there is something wrong with all this. But, perceptually and philosophically, it is an uncomfortable wrenching of common sense to deny that once something hits the airwaves, it is literally in the public domain. The fact that the owners of culture and its material distribution are able to claim this isn't true is a tribute to their ability to restructure common sense for maximum profit.
But art is what artists do, and we can only hope for laws that recognize this. Just as the dictionary recognizes new words-even slang-that come into common usage. Until then, we are stuck with copyright laws which were designed solely by publishing interests and cultural manufacturers who maintain virtually unopposed lobbyists in Congress to ensure that their present stranglehold on the reuse of culture will remain intact. These cultural representors claim to be upholding the interests of artists in the marketplace. And Congress-with no exposure to an alternative point of view-always accommodates them.
A more generous and enlightened approach to copyright law would have it prohibit straight-across bootlegging, provide cover version royalties, and practically nothing else. Virtually all the volumes of statutes which now go far beyond this are not only unnecessary, but counter-productive to the now common practice of piecemeal appropriation in the creation of new work. The crucial difference between simply bootlegging entire works in order to profit from someone else's creativity and the creation of new work which incorporates elements of existing work for the referential or commentary effects thus produced must be made clear to lawmakers. The present "broad brush" of copyright law is acting to censor what artists want to do. Not a desirable role for government.
Culture is more than commerce. The law should begin to acknowledge the artistic domain of various creative techniques which may actually conflict with what others claim to be their economic domain. Art needs to acquire an equal footing with marketers in court. The question that must rise to the surface of legal consciousness now is: At what point in the process of found fragment appropriation does the new creation possess its own unique identity, which supersedes the sum of its parts, thus gaining its own right to legally exist?
The media and electronic publishing industry's argument that appropriation equals rip-off is truly irrelevant. Unlike bootlegging,appropriation in no way prevents an artist from profiting from his or her own work through every form of sale which would normally occur. Beyond that, it is only greed and opportunism which assumes that others' partial or fragmented use of that work-being no part of the original artist's efforts-should additionally profit that artist. It is simply unearned gravy, existing only because of another's efforts to begin with.
A revamping of copyright laws envisions a more free-wheeling and referentially unconstricted art world. This, of course, would be a lawyer's nightmare of lost work and layoffs. But for the culture at large, it would be a vast improvement. For instance: if you are making a movie and want to use a section of a song in the soundtrack, you wouldn't need to clear it and you wouldn't need to pay the artist. You would be free to put that fragment in your work whether it appears to be a favorable context to the publisher or the artist or not. However, if you wanted to use the entire song in your movie-a complete self-contained creation by another-or put out a soundtrack album with the complete song on it, then you would need to clear it with the artist and pay royalties. The difference between referencing a fragment of a publicly available cultural artifact, and presenting that artifact as a complete and self-contained performance should be the defining guideline for artist profit.
In such a world, when an artist releases his or her work for public consumption, they would not only receive the benefit of public sales; they would also give up what now amounts to undeserved control over all forms of public use of that material. If they want to operate in the "public domain," those would be the consequences.
To say that artists and their companies and their companies' lawyers would suffer some kind of devastating economic hardship by the loss of all this second-hand, uninitiated income from outside sources is no longer tolerable when our very process of cultural evolution is now so straight jacketed by opportunistic claims of ownership that it amounts to censorship. Art is not defined as a business. Let me repeat that: Art is not defined as a business. The reuse of culture should be encouraged, not inhibited and litigated.
Today, our entrenched copyright, publishing, and cultural property laws stand as a monument to private greed. They need to be brought, kicking and screaming, into our real world of modern capturing technology and find a comfortable accord with the artist's healthy and inevitable impulse to incorporate public influences.
Well, by now you're probably saying, "Wait a minute, Mr. B! This thing has turned into some kind of totally serious manifesto, grant proposal sort of thing. I didn't pay top dollar for this bootleg in order to get a lecture. Aren't you supposed to be funny, sort of?"
Well, <laugh> <belching noise> I am, sort of. And that's my very next point. Appropriation, by its very nature, often results in something funny. And funny can be just as important in life and culture and art as all that serious stuff that will get you ideological followers or a grant. Let's find out by putting aside all this theoretical rhetoric, and turning to the experiential reality of what I may or may not be describing. I have here a, ah, a demonstration tape. An example of found sound appropriation and transformation. And here it is:
[4'48" of assorted cut-together pieces of tape]
Okay, that's it. I call this a razor tape, because it's made with only a razor blade. Quite laborious, sort of interesting. Eh, not the greatest thing you've ever heard, maybe, but kind of funny in a confused sort of way. Ha. Maybe it's not finished, I really can't tell. It seems to be made out of, ah-commercials? Yes, but they're all mixed up and it's no longer selling anything. So what's it about now? Anything? Of course! It's about all the things I've been talking about. But how? What's the purpose? Well, I purposely chose this tape because it lacks any obvious pretensions to social significance. This tape is not going to deflect our national obsession with the worship of consumerism, even though it's a twist on some of the prayers; it's not going to inspire any moral revelations among corporate policy makers, investment bankers, or politicians; it's not going to put an enthusiasm for the democratic process back into our population. But, maybe even this little effort at nonsense is worthwhile in some less-definable way, and deserves to exist for less predictable reasons. Yet, this little razor tape is entirely illegal and is not supposed to exist at all, without the permission of the people who made the original ads.
Do you think they would have given their permission to do this with their material? Do you think the creators of the original ads should be paid, again, by me, for what I did with their work? Do you think you could have heard it today if I had to find them and wait for their clearance before I could play it? Do you think you could hear it by next year? The year after that?
<sigh> The answer to all these questions is: "No." There is no way to make this humorous little tape-edit legally. And there is no way for you to hear it legally. Yet, I did, and you did. I think no harm was done. What do you think?
There are so many musicians and audio artists who are now actively engaged in various degrees of found sound appropriation that it would run me right off the end of this tape to name them all. Oh, let's see, just one group that comes to the top of my mind is, ah, Negativland, perhaps you've heard of them? But, ah, anyway, it's obvious that appropriation is here to stay, as the ranks of outlaws continues to grow. The composing of found sound materials will continue-outside existing law-regardless of threats and lawsuits and corporate attorneys' retainers, because, it is, of all things, just plain interesting. And for artists, the power of interesting will not be denied.
On behalf of all these creative spirits-the pirate guardians of what's left of public consciousness -- this is Crosley Bendix, urging you, whether you make art, or are in the position of protecting it-please-ignore unreasonably restrictive copyright protections. Because, if the owners of culture do not see the need to encourage a creative climate in which artists are free to do whatever interests them, America's epitaph will probably be chiseled in legalese.
SAMPLE: <drum roll> What do you want on your Tombstone?
Man: I wrote those ads. Another man: Mm-hmm. Man: I wrote them. <music-female vocal "oo-oohs" plus piano>
Yet another man: And the picture of me was not a picture I gave them, it was a violation of copyright laws, because they copied it on their VCR machine, with an off-air feed, it appears...
ANNOUNCER: <over outro theme music> You've been listening to cultural reviewer and social critic Crosley Bendix.