September 20, 1998
In Negativland's Plus Column
The Group's Victory Changes the Rules on Sampling
By Mark Jenkins
In its long-running guerrilla campaign against major media corporations, the West Coast "experimental music and art collective" Negativland has won a small victory. After being refused by five pressing plants, the group has managed to issue its latest CD, "Over the Edge Volume 3: The Weatherman's Dumb Stupid Come-Out Line."
And as a result of the group's efforts, the Recording Industry Association of America (RIAA), a trade group based in Washington, has revised its guidelines for recordings that use "samples" of other recordings.
According to Negativland member Mark Hosler, the CD was originally supposed to be pressed by Disctronics of Plano, Tex., which has manufactured the group's discs for the last four years. The company refused to handle the new release, Hosler said, because of RIAA warnings that pressing plants may face copyright infringement lawsuits for manufacturing CDs with material that has not been properly "cleared" -- that is, approved by the copyright holders. Hosler said that pressing plants have interpreted the warning to include "samples," fragments of sound usually reproduced from other recordings.
Repeated attempts to contact Disctronics executives for comment were unsuccessful.
RIAA President Hilary Rosen says the association encourages pressing plants to call it for guidance on copyright issues, but it had no role in any decision not to press the Negativland album. "We have not gotten a single call from a CD plant about this work," she said. "We're certainly not the cause of their problems."
The RIAA has provided voluntary guidelines to pressing plants, Rosen said, but "our program is geared toward preventing privacy, not preventing sampling. We have never sued or litigated any action against any pressing plant on behalf of member companies for product that was sampled."
Sampling involves electronically copying a snippet of sound and using it to make a new recording, often by repeating -- or "looping" -- the sound to create a rhythmic motif. Long common in hip-hop and electronic dance music, the technique is now used in most other genres of contemporary music as well.
Many prominent performers, including L.L. Cool J, Biz Markie and Massive Attack, have been sued for allegedly using uncleared samples. In Britain, the Justified Ancients of Mu Mu (also known as the KLF, short for Kopyright Liberation Front) were forced to withdraw an album because it contained unauthorized Abba samples. Recently, sampling controversies have been settled with checks rather than lawsuits: The Verve, for example, forfeited the songwriting royalties from its "Bitter Sweet Symphony" because it used a snippet from an album of orchestral arrangements of Rolling Stones songs.
Negativland supports the RIAA's anti-piracy actions, Hosler said, but believes that the trade group's guidelines intimidated pressing plants. "Look who they represent," he said. "They're not just a minor organization that said, 'Here are some guidelines you might want to think about.' They represent 90 percent of recorded music in the United States. So when they issue things like that to pressing plants, it's like telling them what to do."
After an e-mail campaign by Negativland supporters, the RIAA last week added a new paragraph to its guidelines. It reads, in part: "Some recordings presented for manufacture may contain -- as part of an artist's work -- identifiable 'samples' or small pieces of other artists' well-known songs. In some instances this sampling may qualify as 'fair use' under copyright law, and in other instances it may constitute copyright infringement. There are no hard and fast rules in this area and judgments on both 'fair use' and indemnification must be made on a case-by-case basis."
"Fair use" allows artists and commentators to reproduce parts of copyrighted works in another work that remarks on the copyrighted material. Hosler noted that PepsiCo has taken no legal action against the group's last release, "Dispepsi," even though it includes snatches from, he said, "hundreds" of Pepsi commercials. (Curiously, British "big-beat" remixer Fatboy Slim used a Negativland sample in a song, "Michael Jackson," that was just licensed by Coca-Cola for one of its commercials.)
Negativland concedes that its recordings use samples that have not been cleared; its new CD includes unauthorized samples from Pink Floyd and the Village People. But the quintet's work is "collage," Hosler argued, and thus allowed under fair use provisions. "Copyright is a limited right," he said. "It's not an exclusive property right."
Many mainstream musicians use uncleared samples and never run afoul of copyright law, Negativland argues. Hosler cited Nine Inch Nails, the Beastie Boys and Beck among those performers who clear samples only when their source is obvious. "It's just sort of this big game that people play," he said. "If you've mutilated it, messed it up, altered it enough, you don't clear it." In a recent interview with The Washington Post, the Bristol musician Tricky said he didn't credit most of the samples on his latest album " 'cause you couldn't recognize them anyway."
But Negativland doesn't have the commercial clout of major-label recording artists. The group pressed only 2,000 copies of "Over the Edge Volume 3," which was issued last week, three weeks after its original release date.
This is not Negativland's first clash with the music industry. In 1991, the group and the label for which it then recorded, SST, were sued by Island Records over a song called "U2." Island argued that the record was packaged so that consumers might think it was a song called "Negativland" by the band U2, rather than the other way around. SST agreed to delete the record, but Negativland scored a public relations coup when Hosler called U2 guitarist The Edge and asked him to help pay the group's legal costs in the suit. (The guitarist expressed his sympathies, but no check was forthcoming.)
After that conflict, Negativland founded its own label, Seeland, so as to be directly responsible for the work it releases. The threat to its ability to press CDs, Hosler said, "scared the living hell out of us. It's one thing for us to take the risk ourselves. We will take the risk. We think that everything we do is very defensible in a court of law under the fair-use guidelines of the copyright act. But we're looking at a situation where that could be taken away from us. We don't even have a chance to publish our own work."
After Disctronics declined to press the album, Hosler said, four other plants also refused. The group finally submitted the master tape anonymously to a smaller, unidentified plant, despite some reluctance to do so. "I want to be upfront," Hosler said. "We're not pirates. We're not illegal. I don't want to act like I'm doing anything illegal."
Hosler attributes Negativland's dilemma to multinational corporations that "want to own and control everything they can. The idea that there's a gray area, that there's some instance where somebody should not be profiting from someone else's transformative reuse of their work is anathema to them."
Ironically, he notes, Negativland's work frequently addresses "how corporations are influencing our culture. If you have a world where your culture is all privately owned by these gigantic transnational companies, that's a bad thing for art, for science, for creativity."