Telecommunications Radio Project
Program #5-93: "Art and Music Sampling: The Death of Creativity"
KPFA Radio - December 1, 1993

Panelists: Bruce Hartford, Bob Haslam, Don Joyce
Project Director and Host: Jude Thilman
Director: John Rieger
Executive Producer: Bari Scott
Feature Producer: John Rieger
Managing Editor: Alan Snitow

Introduction by Host Jude Thilman

Our lawyers have gone over this show with a fine tooth comb. That's because we're going to use fragments of contested music and other sounds. Copyright in the digital age. I'm Jude Thilman and this is "The Communications Revolution."

Have you ever Xeroxed a magazine or copied a CD to give to your friends? New technologies are making it easier to do all the time. Are you sharing a common culture or stealing the artist's private property? When original material can be captured on computer and sent around the globe at lightning speed, who really owns it? Anyone who can get it? Or is the culture really owned and controlled by a few large media corporations that are quickly buying up all the rights?

Joining us here in our Berkeley studio to discuss these questions are three people involved in copyright and intellectual property issues. Don Joyce is a recording artist with the group Negativland, which has been sued by a large music company for copyright infringement. Bruce Hartford is secretary-treasurer of the National Writers' Union, an AFL-CIO union. He is working on a lawsuit on behalf of writers whose works are distributed digitally without payment. Bob Haslam is an attorney specializing in patent, copyright and trade secret litigation, including computer software and multimedia products.

To begin to get a handle on all the issues involved, we'll take a little trip back in time with producer John Rieger.

Feature by John Rieger

1978 . . . (music: "Stairway to Gilligan's Island") (narrator) How can we take the measure of the song that's dominated the airwaves for most of the decade, that plaintive dissent from consumer society--surely the most quoted song in high school yearbooks of the day--Led Zeppelin's "Stairway to Heaven?" A little gentle satire, perhaps? Little Roger and the Goosebumps apparently had satire in mind when they took the music from Led Zeppelin's fragrant and ponderous ode, "Stairway to Heaven," and recorded it with the lyrics to "Gilligan's Island." Don't look for this classic in the oldies bin. It was censored by a lawsuit from Led Zeppelin's publishing company that this little label was powerless to defend.

Fast forward to 1991. Now here's a tasty target. Rock & roll rebels U2 have become megastars. The brooding outsiders of Irish rock are tycoons, but they still haven't found what they're looking for.

(Negativland lyrics: "I have run, I have crawled . . .") (narrator) Don't you try to find this one in the record store. This group of wiseguys, Negativland, got sued by the biggest copyright holding corporation in the world, and that's right, they couldn't afford to defend themselves. So now this record belongs to U2's record company, and you'll never be able to hear it.

Copyright law was established by the Constitution as an incentive to create new work. Yet often it looks like a private license to censor. And at a time when technology is giving us unprecedented ability to interact with our media environment, copyright threatens to keep us passive consumers of our own culture.

(rap music) (narrator) Take for example, sampling: Using inexpensive digital technology, a generation of inner-city rappers turned fragments of old R&B records into the most influential pop music of the '80s. Sampled rap could almost be viewed as a kind of folk music, in which the past creativity of the community is incorporated into new creative work. But the record companies who held the copyrights to those old records objected. Michael Ashburne is an Oakland attorney who specializes in representing young rappers. (Ashburne) "If you look at the old R&B artists whose work was sampled for a number of years, they got no credit on the record, they got no money, they got no respect--the kids were just taking their material, putting it on their record, and selling the hell out of it, and they were left holding the bag." (narrator) Under legal threat from the major labels, rappers now have to pay to play--license fees and royalties for those borrowed fragments. The sums involved are substantial. (Ashburne) "It costs between 30 and 40 thousand dollars for a record that utilizes sampling extensively." (narrator) For an art form of the inner city, fees like these are a discouraging barrier. (Ashburne) "I'm finding that amongst my clients, when it comes time to do the second album, there are much fewer samples on the second album."

(narrator) Today, five major corporations worldwide control most of the copyrights in the music business. It's a big business. Giant EMI just paid 70 million dollars to Michael Jackson for the right to manage his catalogue of copyrights, which includes Elvis Presley, Little Richard and most of the early Beatles. What these companies own is part of our shared culture. And what about those old R&B artists who fared so badly with the rappers? (Ashburne) "The problem is, is that typically these artists are unrecouped." (narrator) "Unrecouped." That means they're still in debt to the record company and they won't see a cent.

The impulse to sample isn't new. Picasso used fragments of newspapers in his Cubist collages. T.S. Elliot and Ezra Pound included verbatim passages of pre-existing texts in their poetry. Bruce Conner's movies, made of recycled footage, influenced MTV and too many TV commercials. But new tools like the Xerox machine, the VCR, and now digital information systems of all kinds have made copying a casual act. When artists pick up these tools, they naturally turn them on their environment. And today the environment is filled with copyrighted media, like this . . . (crazy commercials) (Joyce) "It's all taken from a series of advertisements that I think came out of New York City some time in the '60s. I don't even know exactly who did them and I wouldn't tell you if I did, because it might point it out to them and they'd sue me." (narrator) Don Joyce should know. Island Records sued him for his band's U2 parody. It had a concentrating effect on the mind. (Joyce) "Business has colonized the arts. Business people who come up and say, `Well, this is necessary, of course, this is private property, this is ownership. We have to uphold the standards of private property and ownership.' They've made collage a dangerous idea."

(narrator) But major copyright holders are facing a vexing challenge in the form of new technology. ("I'm sorry, Dave. I'm afraid I can't do that.") This famous sound bite was probably stolen. So was this one: (Roadrunner). . . and this one ("I'll be back.") They were uploaded by some hacker somewhere to one of the commercial on- line computer networks, where this reporter found them and downloaded them for this story. Digital information on networks, CDs and computer disks is easy to share this way, and the copyright holder would have a hard time tracing the thief.

(Zimmerman) "Imagine yourself if you're a person who's written a song, or written a book, or taken a photograph. This is yours, this is your baby." (narrator) Nothing ignites the American spirit of liberty like private property. If I own it, I'll decide what to do with it and who can use it, whether it's a power boat or a pop song. Barbara Zimmerman of BZ Rights & Permission, Inc., specializes in getting permission to use other people's property--specifically, their intellectual property, tangible works of original authorship from films to books to records. (Zimmerman) "I had one of the transplant organ foundations call me. They wanted to use "I Left My Heart in San Francisco" for a national commercial for donating transplanted organs. Socko commercial, OK? This is one of the great love songs of all time. Identify it with an organ transplant association and you've probably changed its meaning forever. The guy who wrote that song is entitled to choose." (narrator) The artist has a right to choose because the work is his property. If he chooses to sell his work to a publisher or a record company, that's his right as a property owner. But copyright is a special kind of property right. The Constitution speaks thusly:

"The Congress shall have the power to promote the progress of Science and Useful Arts by securing for limited time authors and inventors, the exclusive right to their respective writings and discoveries."

The Constitution doesn't view copyright as an inalienable right of creators. It's a right established by Congress to further the advancement of knowledge. Copyright is an incentive to authors--in effect, a monopoly over the market for their work. But since absolute monopolies would stifle the free market of ideas, the term of a copyright is limited. Another limit on the copyright monopoly is the Fair Use exception, which allows news reporters, critics and scholars to take parts of the works of others without permission. But in practice, copyright tends to become an economic right of publishers, who have the capital to enter the marketplace and the capital to defend their property in court. Gradually, the elements of our shared experience become available only for purchase, and the public sphere becomes an intellectual shopping mall, where the common resources of art, language and information are taken from society, held by powerful corporations, and then metered out to those who can afford to pay.

I'm John Rieger for "The Communications Revolution."

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Host Jude Thilman: Is our culture becoming an intellectual shopping mall, with ideas and art sold to those who can afford to pay? And who can even afford to set up a store in the mall, to take the analogy a bit further? We have with us Bruce Hartford with the National Writers' Union, Don Joyce, a musician with the group Negativland, and Bob Haslam, a copyright attorney.

Bob Haslam to your first. You spend your time protecting copyrights for commercial purposes. Doesn't the copyright system as it exists now restrict access to culture for the average person--say this rap group in the garage that's trying to become a famous artist?

Bob Haslam: It may have some restrictions, but I think you have to look at the balance that it tries to strike. It protects the original expression of the creator or the author or the musician, and it will ultimately protect the rap group after it's created its thing, because without the copyright laws there would be nothing to stop me from taking a copy of the rap group's music and distributing it myself as my own, without the copyright law to protect the rap group in its original expression.

Host: But the problem really comes with the expense involved, the purchase of the copyright license. Don Joyce, you put together samples of pieces of music--sometimes, what, 100 samples in one piece of music?

Don Joyce: Sure. I follow a collage form, and often times we will use hundreds of bits of fragments on a single album. And expense is not only the problem. The way we randomly take stuff off the media to begin with--sometimes we're using stuff that's years old, we can't trace it back, we don't even know who owns it at all anyway, and it's just a little piece of something.

Host: So it would be impossible for you to obtain the right to use that anyway?

Joyce: Literally impossible--both because we can't find the owner, and so there's no way to contact them, and because if we could, we couldn't afford their fees which are set pretty much for the inter-corporate trade and not for independents like us.

Host: What would it cost if you were to find the original owner, get permission and pay for it?

Joyce: I have no idea. It would vary a lot, but it would be thousands and thousands of dollars. And we produce our own records one at a time--we simply can't afford that kind of expense for each piece we do.

Host: So Bob Haslam, is Don Joyce really hurting anybody in the kind of work he does when you're talking about protecting the original artist's right to his or her work?

Bob Haslam: You could make the argument that in that particular case, he isn't necessarily hurting anyone, but as in most areas of the law, copyright is a line drawing process. And it depends on where you draw the line, but I can draw the line where it protects, as with what he did, a Fair Use. And then if you get the line to that point, why isn't it fair to push it a little further? And then you get up to it's taking 95% of the work, and is that not hurting somebody? And I think at some point, you have taken into your work something which is creative expression to somebody else. And why is it that you're taking that as opposed to something else? Because there's some value in it that that original author put into it that you're using.

Joyce: But it's totally rearranged and remanipulated to create something new. It bears little resemblance to what the original creator of that did. And the reason for using it has often little to do with the intent of the original creator. In fact we're often involved in parody and satire, and we're actually doing very unflattering things or things opposite to the intent of the original, or simply displaying it as an example of something we're making a comment on. And in that case and in that sense, I would pursue it as Fair Use too, except Fair Use is drawn way too broadly at this point in terms of being in favor of the owner's rights and not in favor of the creative reuse of material.

Host: Now Fair Use allows for the use of original material for parody or satire.

Joyce: Yes. It's the one little element in the copyright law that acknowledges any sense of free speech or emphasizing creativity over somebody's ownership rights. But the way that it's interpreted by the courts now, it's very strictly interpreted and withheld from most people.

Host: We talk about how much you take of someone else's original material. You're willing to take up to how much? Ninety-nine percent?

Joyce: That's an important issue. I think that is basically what's wrong with the way copyright law is written now. They'll come down on you as much for bootlegging an entire work as for taking a little fragment. I think that's a total misreading of things that have emerged in culture like sampling. For my part, I would say that a fragmentary use, you should clear all restrictions from any fragmentary use.

Host: Any fragmentary use up to 99% of a person's work, or where do you draw the line?

Joyce: I would add to that stipulation that the definition of a Fair Use should be when a work is more than the sum of its samples. In other words, I'm against bootlegging. I'm against bootlegging entire works or straight-across copying, but I think any creative use or reuse of material that creates something new, which is fairly easy to define when given examples, that is something that is more than the original. It is rearranged, it is remixed with other things, it is combined, and it creates something that is unique and creatively worth of existing.

Host: Bruce Hartford of the National Writers' Union, let's bring you into this discussion. You're concerned about writers getting paid for their work. Does what Don Joyce does with music bother you? What if it was done to your articles? What if people took parts of your articles?

Bruce Hartford: As he's describing it it doesn't bother me at all. I think the question is, first of all, are the fragments he's using, are they recognizable as my work? Most of those sound bites that I heard in the taped piece were totally unrecognizable as to who they were and what they were from. The second question is not so much culture, but making money off of my work. If I create something and then Don uses that for him to make money, I should at least have some share of whatever money he makes by using my work. Now there is Fair Use for quoting small portions, there's Fair Use for satire, there's Fair Use for parody. I have no problems with that. The real problems we have with copyright actually are not people like Don. The real problems are with these multi-national information companies like Paramount Communications, who take writers' work, particularly freelance writers' work, and essentially use it in ways they have no right to do. They make enormous profits off of my work and I have no recourse in the courts because I can't afford to go to New York to sue them. That's the real problem, it's not sampling, as Don was talking about.

Haslam: The problem that you just pointed to I think is really not a problem of the copyright law. It's a problem elsewhere and what you may perceive to be the problems in society. Because at the point at which the author or the musician parts with his ownership of the copyright, he is receiving whatever compensation he wants, and if he's in a position where his bargaining power is such that he doesn't get what he thinks is a fair return or what you don't think is a fair return, that's not a problem with the copyright law, that's a problem that exists elsewhere in society.

Host: With technology we're seeing a new set of problems superimposed on the problems you're mentioning, Bob. Bruce Hartford, MIT media theorist Nicholas Negroponte has said that in the computer age, writers are simply bit manufacturers. Your words instantly become part of the bit stream, so get use to it and get over it. Essentially you're only as good as your last article. You should get paid and perhaps paid well for whatever you've written, but after that it's public domain, if you will.

Hartford: I think that's nonsense. I think a creator who creates something has a right to be rewarded for that. If we don't reward the creators, then in all of this new information age, there's not going to be very much information. People have to be able to make a living at their art, at their craft. Right now the overwhelming majority of all creative artists are so poorly paid, they have to work as taxi drivers and waitresses and other jobs just to support their art. To say that you can take my work, and once I have been paid for, say, a first-time use--essentially renting my piece for the first publication, which is normally what a freelance journalist does; then at that point it's the same as giving it away free--is nonsense. If somebody wants to take all rights to use my work in any way, then they have to pay me a just amount for that, and that's not what is happening. What is happening is the payrates are still in roughly the place they were in the 1950s, and yet the corporations like Paramount-Times Mirror and Conde-Nast for example, which now will write the contract that says that anything they buy, they have all rights for all kinds of uses now or in the future in perpetuity--even things that have not yet been dreamed of. This is totally unfair.

Joyce: The music industry is the same way. When you sign with a record label, you virtually give up ownership of your own work to a marketer, essentially. Someone who didn't make it at all now owns it in perpetuity and can do anything they want with it. That's another whole area that should be reformed, is the recording business contract, but that's another issue.

Host: Bob Haslam, what's wrong with this picture? Why are the artists getting dropped out of the equation when it comes to the purchasing of culture?

Haslam: As I said before, I think that's a cultural or societal problem.

Host: But in terms of copyright law, is there any way that we can factor them back in?

Haslam: I don't think it's a matter of the copyright law. The copyright law gives them, as the original author of the work, gives them the copyright benefit in most instances. What the problems that Don and Bruce have just talked about are that they don't have the power to get the benefit out of that right--they're forced to give that to a corporation, which is the one that then gets the benefits from it. But I don't understand them to be saying that somebody shouldn't get that fair benefit. There's more concern I hear that they're not getting their fair share, as opposed to that this ought to be put out there free for public access.

Hartford: I think Bob is right. I don't think this is primarily a problem of the copyright law, although there are amendments and changes and an evolution that the law needs to go through. I think the basic problem is, that artists have been trying to deal as independent individuals with huge megalithic corporations. That's why we formed the Writers' Union, because you cannot, as an individual artist, deal on equal terms with Paramount Communications. You have to build alliances and solidarity among all artists, and then you can at least begin to redress this imbalance of power.

Host: Don Joyce, do you think Bruce Hartford should get paid for anything he's written, no matter how often it gets passed around the Internet or bulletin boards digitally for anyone to read?

Joyce: My position in terms of the principles of this thing is that he should get paid every time his entire piece is used. Once it starts to be quoted and fragmented, I have questions about that, although I know literature is a slightly different case that maybe has to be thought about differently than what I think of it, in terms of music. But in general I'm coming from a music standpoint, and that's the standard I would put on music, and I would say, everyone has a right to be paid for what they created. When it becomes changed and part of what somebody else creates--no matter to what degree, as long as it's less than the whole-- they don't technically deserve to be paid for that. Although if these copyright laws were liberated, all the people using samples and using people would be happy to credit them, and I bet, pay them too in a lot of cases, which they don't do know because just to inform them would be inviting a lawsuit.

Haslam: The problem with that is, I would then take your record that you've sampled and is your original creation, and I'll take 92% of it. And I'll bury in the background somewhere the changes that probably will be unrecognizable, but I will take what is the essence of your work . . .

Joyce: It wouldn't pass my test.

Haslam: It's less than the whole.

Joyce: But it is not more than the sum of its samples. In other words, there has to be a distinction that the courts--again, this would go to court and a court would decide, but it would be easier than what they're deciding now, is to be given a work and saying, "What's the intent of this? Is it artistic or economic?" If it's artistic, it should be Fair Use. If it's economic, they should be paying rights. And if you use everything but the last 10 seconds of my piece, you are obviously in the realm of bootlegging in my opinion--unless you change it, unless you add things to it. Now if you did that, then you'd have an argument at least, even if it was 98% of my stuff there, if you added any degree, and in listening to it it was substantially different than what the original consisted of, I would give you Fair Use. And I would say to the artist, "That's life, that's technology, that's how it should be now for the sake of creative freedom." We put the benefit of the doubt on the creative side instead of the commerce side.

Hartford: But if somebody uses 80% of your work and it's the foundation stone on which they have made some small changes, and then they go and sell that and make millions of dollars, basically mostly using your work, it seems to me only reasonable that you should at least share in some of that income.

Joyce: That would be nice if they used that much of my work that they would share that, and they probably would if they didn't feel like they'd get sued to some degree--I certainly would with people I use. But the point is, that person who made that original thing forever gets to sell that original thing, and that's all that person ever intended to make. All this other income that comes from other people's ideas and uses of their work is not really their work, it's just using their work. And so, they still have the whole entire income they ever expected to have as an artist by selling their own work.

Hartford: First of all, for literary people, what we expect as income and need in order to survive is all kinds of subsidiary incomes. My second point: take hypertext, for example, where now we're digitally able to put in a database all sorts of literary and music and art, and then create webs of ways in which people can access in non-linear ways. A simple example would be, for more information see whozis. Click your mouse on whozis and you've got whozis. Those webs are actually creative, but they're based on . .

Host: We're going to have to stop there for a second. We're discussing intellectual property rights and creativity for artists in the electronic age. The heated discusser that you just heard from was National Writers' Union Secretary-Treasurer, Bruce Hartford. Also with us, are musician Don Joyce and copyright attorney Bob Haslam. I'm Jude Thilman, this is "The Communications Revolution."

We'd like to hear from you now, whether you're an artist, writer, musician, or simply concerned about the complex issue of copyright in the computer age. Call us at 1-800-835- 9080. We'll be right back.

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"Mickey Mouse belongs to Walt Disney, but Mickey Mouse is a cultural icon. Mickey Mouse belongs to all of us. If you can't parody Mickey Mouse, you can't parody anything."

"I think what you get here are a bunch of people who want to make money and they want Superman and they want Casablanca and they want Kurt Vonnegut, and they want what they want so they can get this program, it's just terrific, and they can sell it. And they don't like the idea that someone is saying `No.'"

Host: Cultural icons for the people or just a bunch of complaining artists, writers and musicians who want to make money off someone else's work? We're talking about copyright and intellectual property in the digital age. Our phone number if you want to join the discussion is 1-800-835-9080. Call us with your questions and comments. Let's take a call right now. Tony from San Francisco, you're on "The Communications Revolution."

Caller #1: Thank you very much for this program. This really touches me. Back in '77 I did some artwork for a new publication. We didn't use up all the graphic ideas I put down on paper here and there on my desk when I was working for this fellow. A few months later he was using one of the ideas as a logo. I didn't do anything about it then. I knew I had some time; I wanted to think about it. And then I went to work for the fellow, so I figured well I needed the experience to layout, paste-up graphics. And actually it was a pretty up-and-coming publication--it's still going strong. So then he sent a--what do you call these people you hire to give you advise? . . . consultant. He sent a consultant to talk to me, a really sleazy guy who admitted to me he'd been kind of money launderer up in Mendocino at one time. I thought, why should I talk to this guy? Well anyway, nothing happened, and I didn't want to discuss anything with him. And so then they let me go. They moved their office to Los Angeles from San Jose where we were working. So I've talked to an attorney since across the Bay . . .

Host: Do you have a question for our panelists? It's an interesting story, but . . .

Caller #1: Yeah! Some day if these kind of laws do pass, is there anything retroactive coming to me?

Host: Bob Haslam, you're the attorney amongst us.

Haslam: I'm not sure what you mean by retroactive, but there is a statute of limitations, which would at some point bar any claim you may have for this other person taking what was yours. Just from what you said, there may be an issue as to whether or not what was created was yours or his, and that gets into a whole legal doctrine that's been in ferment in the last year or so. But there is a statute of limitations which you should keep in mind, because the sands are going through the hourglass.

Hartford: Could I add one thing to that? This is one of the reasons that the Writers' Union has a grievance department, and this is exactly the kind of grievance that we win almost every time we take a case for our members. This is not something you go to court with. This is something you use the power of you and other artists who are being cheated, and say, "We will not stand for that." And that's the strength of numbers in organization, and that's the way you deal with this kind of thing. And we're very successful in dealing with it.

Host: Let's hear from Oakland, California. Ben, you're on "The Communications Revolution."

Caller #2: Back to this question of whether the problems in society or the copyright law. When the original author, creator, creates the work as an artist or a writer or a musician, that's their human right of free speech and the act of creating. They have a certain ownership over that creation, but it's not quite the same as a copyright. To me it seems like it's sort of an inalienable connection between the creator and the work.

Joyce: I agree. And another artist has just as much right to recreate that work as the original person did to create it.

Caller #2: I think this gets back to the question of when the copyright is then negotiated to be sold, I think people could sell property rights but they can't sell an inalienable right--you can't sell your human right, you can't go into slavery. So that when a corporation buys the copyright, it would seem to me the law could be amended that certain rights, no matter what the purchase arrangement, are retained by the original creator.

Joyce: What certain rights?

Caller #2: That would definitely be something to discern, but I don't think . . .

Joyce: What's your concern with it? What rights do you want them to maintain? Economic ones or what?

Caller #2: Well I think economic ones would definitely be part of the picture, but in terms of when the uses evolve and people are using the rights and making money off of them, the idea that you can just take someone's work and then they are cut out of the picture--the corporation now owns the rights, and the original creator is no longer part of the equation.

Hartford: I'd like to point out that under California law, if an artist paints a picture, sells it, and then years later that picture is sold and sold for astronomical sums--now under California law, some small portion of that increased value always goes back to the artist. And I think that's a very good principle.

Joyce: I think that's very good, too, but there again you're talking about the entire work, which I agree. The original artist of an entire work should have complete control over that work for its entire life. Once it gets broken up and reused in new ways, I think he should give up the majority at least of his claim in that work.

Hartford: I think if the pieces are recognizable . . .

Joyce: They're often used because they are recognizable, that's the reason for the use in the first place.

Host: Let me pose a question about the recognizability of pieces. My concern is that we're going to see a total stagnation of culture in the sense that very recognizable icons, if you will, such as Mickey Mouse or what have you--"Happy Birthday" just got bought by Time- Warner. Every time the song "Happy Birthday" is sung on a mass media . . . no, this is true. Time-Warner bought the rights to "Happy Birthday." My concern is . . .

Joyce: Wasn't it public domain up to now? Can you suddenly copyright something that's public domain?

Haslam: If it's in the public domain, there are only very limited circumstances in which you could try to thereafter copyright it. There are limited exceptions, but basically if it's in the public domain you cannot copyright it.

Host: My understanding is "Happy Birthday" was not in the public domain. It had an author, it's a regular piece of music. But there have been lawsuits--for instance there was a movie producer who did a movie about Karen Carpenter using Barbie and Ken dolls, and was sued by Mattel. Now the question of satire, parody, that's an essential part of our creative culture. This is getting squashed, is it not? When is a cultural icon really public property, that we should be able to create off of?

Joyce: My position is the electronic environment we are now all emersed in and have been for decades is as valid a subject for art as the natural environment, and it's just as pervasive and just as affecting. So, there it is. And I think law has not come to terms with this, nor has it come to terms with reproduction and reception technology that invites everybody to capture stuff in the first place. It just will not acknowledge the fact that all these things have been swept out from under it by technology and by the culture.

Haslam: The same technology which you pointed to which makes all of this information available--for example on the Internet--what's going to be the information superhighway--that same technology also permits the ability to monitor and to charge, if you want, for the access to it. So the fact that technology has moved forward doesn't automatically mean that it's to sweep away the laws. I do agree with you, however, that the law will probably lag behind.

Joyce: It's lagging way behind. And it's not so much that it's swept them away. The law, as it was written, and it was written quite a while ago, does not acknowledge the new imperatives that this stuff makes necessary. It's not that it sweeps them away, it makes them unworkable.

Host: Let's let our callers in here. . . . Bruce Hartford, go ahead.

Hartford: I have no problem with satire and parody. When the National Lampoon wrote Bored of the Rings, a satire on Lord of the Rings, they created a new book. Yes, it was a satire, but they wrote that book. They didn't take page after page of Tolkien and slip it into their book and then sell it. What I'm talking about is taking big hunks of my work and you selling it and making money, and not giving me any share of it.

Joyce: Don't assume that a valid parody can't be made by taking vast segments of something and using it.

Hartford: Of course it could be a valid parody . . .

Joyce: But what I am saying is I would like the law to turn around and give the benefit of the doubt to creativity and to the artist's side of things, instead of commerce, who has always had the upper hand in these issues and been able to control Congress and writing the law, and been able to control the courts in deciding these laws.

Host: From Sacramento let's hear from John. Hello, John, you're on the air.

Caller #3: On digital audio tapes, a lot of us are using those nowadays and sending those around to record labels for demos or just passing them amongst friends. Is there anything in particular we need to be aware of or careful about?

Joyce: ASCAP and BMI recently passed a law that is charging you a new tax on those tapes when you buy them, in a way to set a general fee for all the assumed copying of works that's going on. And in a way, Bruce, I would say that's the solution to your problems--to come up with sort of general fees for the reuse and fragmenting of your work, but not for the specific usages that actually inhibits those usages.

Haslam: Or digitally, for things that are distributed over a computer network, there could be automatic payments.

Joyce: That's what I mean. That was ASCAP and BMI's solution to all the copying going on at home.

Host: You can imagine the civil libertarians crying, all the people who are plugged into bulletin boards saying, "Oh now I've got to give you my credit card number as well in order to tape something out of the bulletin?"

Haslam: There could be the equivalent of digital cash.

Joyce: Yeah, and it's only a penny or two per cassette, which I find perfectly reasonable just to make that assumption, and thereby avoid all the individual lawsuits.

Haslam: But then you've conceded the point that there is some recompense necessary for sampling, even on a small amount. So it really then becomes just a matter of line drawing.

Joyce: I'm against the way it's done now. I'm not saying that there aren't other ways that artists can't be compensated for use, even if fragments. I'm saying the way it's handled now is very poor.

Host: At some point somebody's going to have to figure out where the lines are drawn. Our lines are drawn at 1-800-835-9080, if you want to join our discussion on intellectual property rights in the digital age. Let's hear from Anaheim now--David, you're on the air.

Caller #4: Several quick points. I believe there was a test case involving an early Frank Zappa song, where it was allowed that you can quote up to four measures of a song without having to pay royalties. And the name of that song was "Memories of El Monte," and it quoted several early R&B tunes.

Joyce: I think that's been turned over, though.

Caller #4: Well, as a person who was doing this long before there was digital technology, I think the real defining line is when you're creating a new statement and you're reuse of the work is itself a creative force, and that can be copyrighted. I think once you get into that area, you're doing exactly what Picasso did by putting pieces of newspaper in his paintings, and I think that would be a valid test on this matter.

Joyce: It happens all the time and it usually loses.

Caller #4: Also the question is, Frank Zappa has said, "If you're doing this to rip me off, that's no good, and if you're doing it because you like the music, that's good." And it really comes down to also whether you're willing to attribute the person who you're quoting from. I don't know if you're familiar with the person Charles Ives, but his work is based a lot on quotation.

Joyce: Music is entirely chock-full of appropriation from beginning to end, and only in this century has it attempted to be criminalized and stalked all at once arbitrarily. But it's a creative method that goes back to the beginning of music. Certainly folk music and classical music is full of it, and jazz is full of it, and blues is full of it and rock is full of it.

Host: Don Joyce is a musician with the group Negativland, and that's who was just speaking. Also with us today for our discussion on intellectual property rights in the digital age are Bob Haslam, a copyright attorney, and Bruce Hartford with the National Writers' Union. Let's hear from San Francisco--Alan, you're on the air.

Caller #5: The question I have is, that many corporations buy up rights and then withhold them from the public. What about having the copyright law changed such that if they don't keep it in access like through a depository or something like that--I'm thinking particularly of film, but there's other media that the same sort of thing happens with--if they don't keep it available so that you can actually purchase a copy in a reasonable way or have access to it, that the copyright either reverts to the original person or the copyright becomes public domain?

Hartford: I think that's an excellent idea. And in fact many book contracts include that in the contract, that when the book goes out of print, the rights revert to the author. The problem is that very often the large publishing companies abuse that terribly. The Writers' Union stand is that once a book publisher, for example, stops promoting a work, then the rights should go back to the author to give that author another chance elsewhere to distribute their work. But I think that's a very important point. And I have to say in all honesty that I think the issues that we're talking about here--sampling and parody and so forth--are important issues, but far more important and a far bigger problem are Simon and Schuster and Paramount and Times-Mirror taking creators' work and not paying them. It's a far more prevalent and far more serious problem than the question of whether somebody is parodying or sampling the music.

Host: Let's take an example of sampling that we have available to us right now, Bruce Hartford, and see just how big a problem we're creating. We're going to hear a piece of sampling that Don Joyce actually put together that consists of sounds the radio listener didn't hear from national radio personality Casey Kasem. Now, Casey Kasem has a wholesome sort of image, and in this recorded but unbroadcast bit, he's letting his true feelings show about identifying the band members of the group, U2:

"Now, we're up to our long distance dedication, and this one is about kids and pets and a situation that we can all understand, whether we have kids or pets or neither. It's from a man in Cincinnati, Ohio, and here's what he writes: `Dear Casey, This may seem to be a strange dedication request, but I'm quite sincere, and it'll mean a lot if you play it. Recently there was a death in our family. He was a little dog named Snuggles, but he was most certainly a part of . . .' Let's start again, from comin' out of the record. Play the record, OK?" (record) That's the record U and the numeral 2. The four-man band features Adam Clayton on bass, Larry Moran on drums, Dave Evans . . . this is b_ _ _. Nobody cares. These guys are from England--who gives a s _ _ _. It's a lot of wasted names that don't mean diddly-s _ _ _. This is bull _ _ _ _. Who gives a s _ _ _? Diddly-s _ _ _. Nobody cares.

Host: Don Joyce, now you presumably didn't do this for your own living room enjoyment?

Joyce: I certainly didn't bleep it out. That's John Rieger who did that.

Host: We have to do that for the FCC, but are you really waging the good fight on behalf of a higher ethical standard of artistic freedom, or do you just want to be able to muck up somebody's reputation with a titillating caricature and make money off of them?

Joyce: Both (laugh). No, I think that actually Negativland has what, nine records out, and that's the first one that used any obscene language, and boy, that's the one that got jumped on. So, no, it's not a habit of ours to use that particular kind of material, but on the other hand we thought in the genre of bloopers, this one was like the kind--totally irresistible and very hilarious.

Host: You stole this material, right?

Joyce: No, we didn't steal it, someone gave it to us. At a concert they came up and handed us this tape--has been floating around underground for years and years, it's actually quite old. And so, no, we didn't steal it, it was given to us, because it exists almost in public domain out there among a lot of collectors.

Host: Bob Haslam, is that right? There's this huge underground of tapes such as this one floating around--is that public domain?

Haslam: Without knowing what the source of all of those public domain--as you want to say--tapes, you can't say that just because it's out there, it's free to take . . .

Joyce: From an artist's point of view I can say that, and the fact that the law does not acknowledge that does not make it necessarily artistically healthy to say that. Yes, because it's out there, it's part of my environment, it's part of what I encounter--I can use it.

Haslam: Everything that's pirated, bootlegged, literally copied, is out there in your environment. It doesn't mean that you have the right to take it.

Joyce: I say it does, short of the entire work. That's what I'm saying and that's what the law should allow.

Host: Let's bring in someone from Los Angeles. Jesse, you're on "The Communications Revolution."

Caller #6: I have a question regarding the complexity of copyright within the context of academic settings. For example, working for a researcher who gets money from a federal organization. He then takes my work, publishes it subsequently through a commercial publisher, and the rights to that are either his or the university's. And I'm essentially left with a question mark.

Joyce: Again, it's this bigger problem that Bruce was talking about, which is really true. It is a much bigger problem, and that is the total colonization of the arts by business. They are in control, they are in charge--it's been that way for years--and it's going to be really hard to turn it around and give the artist some prerogatives and some power over this humongous commercialization of all creativity in this culture.

Hartford: And particularly in academic settings. What we found in the Writer's Union is probably some of the very worst and most abusive publishing contracts are on the part of university presses towards their authors. It's a shame.

Host: Our number again 1-800-835-9080 if you want to join our discussion on intellectual property rights. This is "The Communications Revolution." Dwayne from Anaheim, welcome.

Caller #7: I have been listening to this program and I find it refreshing. But I look at corporations--you say there are five major corporations that are running a lot of the music business--and they are using the copyright laws to their own ends and they are acting like petulant little children with a heck of a lot of legal clout.

Joyce: And they found a supplemental income that they didn't know they had until they studied these laws, and now they're using it to its hilt.

Caller #7: Exactly. And what I find is that what they're going to do is stifle creativity by taking this action, and in the long run it's going to be bad for everybody.

Hartford: People have been saying that about the copyright laws since they were first passed back in 1790, I believe. It hasn't stifled it yet in the last 200 years.

Joyce: I disagree. It has stifled it terribly. Look at what is now called "corporate music" in this culture. Turn on your radio. We're not getting alternative things, we're not getting creative people stretching the envelope in any way in corporate music--it's all the same, it's all formulated, and it's all based on what was popular last week.

Hartford: Not because of copyright. It's because there's a limited number of channels that they control.

Joyce: It's because of the commercialization of music and the control that the commercial interests--commerce--has over music, which is supposed to be an art. Look it up in the dictionary--art is not defined as a business.

Hartford: With these new technologies, we have the opportunity of end-running them. That is, if they end up controlling the information highway, then they will replicate the system with network television. But if creators have equal access to all the information, the new information age, then we can compete, we can create and end-run this kind of corporate bland homogenizing. But it has nothing to do with the copyright laws.

Joyce: Yes it does. This is where copyright comes in. You not only need access to those channels, you need to be able to use it once you get access. And that's where . . .

Hartford: And copyright your work so that it doesn't get ripped off by Time-Warner, who is much more able to distribute and print and publish. See, I need protection from Time- Warner, because if they can steal my work, they can print a million copies. I can only print a thousand.

Host: Just speaking is Bruce Hartford of the National Writers' Union; before him, Don Joyce of the group Negativland. Dwayne you, sparked a little fire here. Thank you for the call. Let's hear from Cotati--Todd, you've been very patient. Welcome to the show, Todd.

Caller #8: My question concerns copying people's sound, like Tom Waits a couple of years ago. I think a car company copied his voice--they had another actor come in and sound like Tom Waits. And he sued and I think he won that case, and I think Tina Turner and maybe a few other people. Now how does that relate to copyright when you copy somebody's style or sound?

Joyce: No one is more aware of the creative value of appropriation than advertising. You see it in commercials all the time--ripping off old songs. They know the power of that familiarity.

Host: Bob Haslam, let me ask you. Can advertising companies get away with murder where the individual artist can't in terms of copying?

Haslam: No. They're subject to the same rules, and as Don just said, they pay for it. Now you may have a problem with the fact that they can pay for it, and you and others can't pay for it, but they're not exempt from the laws anymore than anyone else is.

Joyce: I would make any usage by advertisers--even fragmentary, any usage whatsoever by advertisers--subject to heavy payments and permission, mostly importantly permission of the original owner. But that doesn't work at all either because people like Michael Jackson are selling "Revolution" by the Beatles to a sneaker company, which is disgusting. John wouldn't approve, but he's doing it because he's the owner and he gave them permission to do that.

Haslam: There is in the copyright law in this country now a limited right of what's called a moral right of the author of certain types of works to get attribution and to prevent it from being used in a way in which he would find offensive. These rights exist in much more force overseas.

Joyce: That's why they're using old work where the authors are dead.

Haslam: But I mean it's mostly starkly presented by would you want Mickey Mouse in a pornographic film?

Host: Let's hear from Los Angeles. Roger, you're on "The Communications Revolution."

Caller #9: I just want to make a comment. We all know the problem, and I always thought of boycotting these multi-mega corporations like Time-Warner--they're part of the media corporations, right?--which exploit artists, the environment, etc. You guys all know the problems with that exploitation. So what I'm trying to say is how about boycotting them? It is now time for everyone of us to mobilize.

Haslam: Those corporations are involved in so many things you're not aware of that it would be impossible to boycott them, because their products are so proliferated into so many areas of your life.

Hartford: They control all the channels of distribution, and if you're an artist, people have to see your work. And if all the channels of distribution are controlled by seven companies, you have to deal with those seven companies. The new technologies, we hope, if we can win freedom of access, will provide alternative distribution channels that artists can use to go around these roadblocks from these seven corps.

Haslam: Let's not forget that it requires--we're talking a lot about distribution channels and getting everything out to the public in part so that authors and artists can get fair compensation--but it does take money to prepare these things, to build the distribution network. The information highway isn't going to be cheap, and those corporations do provide a vehicle for getting the capital together to be able to generate these distribution networks.

Joyce: But don't kid yourself. Why do you think they're going to expend that money? Because they see it, again, as another selling medium, just like they've made TV and radio and everything else.

Haslam: No one has ever said that most corporations don't exist with a profit motive.

Joyce: So watch out! When they get in the Internet, which is now publically fund and an admirable institution, once that public funding ends at the end of this year and corporations get into it, it's going to change it significantly, because they always do with the profit motive.

Host: Do any of you see any hope for reform of copyright law, the sense of Fair Use, public domain in the digital age with these new technologies?

Haslam: I don't think you're going to see any significant change in the very near future. Back in the '70s Congress commissioned a study of whether or not the advent of computers and software really required an overhaul of the copyright laws, and they came to the conclusion that you could take new technology such as the computer age and software and treat it as a literary work under the existing copyright laws. And I don't think you're going to see, at least in the near future, any significant change based on the multimedia or information superhighway.

Host: We're going to have to let Mr. Haslam have the last word because we're flat out of time. My guests have been Bruce Hartford with the National Writers' Union, Don Joyce with the group Negativland, and Bob Haslam, a copyright attorney. Thanks to all of you who called in to our show. Join us again next time.

I'm Jude Thilman for "The Communications Revolution."

Show #5-93 "Art and Music Sampling: The Death of Creativity?"

RESOURCE LIST

Tapes and transcripts available through:

The Pacifica Radio Archives 3729 Cahuenga Boulevard West N. Hollywood CA 91604 (800) 735-0230

To get in touch with the following panelists:

Bruce Hartford New Technology Campaign 415 Warren Drive, #1, San Francisco CA 94131 415/252-9876; email: bruceh@netcom.com

Bob Haslam, Atty. Heller, Erhman, White, & McAuliffe 525 University Avenue, Suite #1100 Palo Alto, CA 94301-1900 415/324-7000; fax 415/324-0638

Don Joyce Negativland 1920 Monument Blvd., MF-1 Concord, CA 94520 510/420-0469

Hartford is secretary-treasurer of the National Writers Union. He's working on a lawsuit on behalf of writers whose works are distributed digitally without payment.

Haslam is an attorney specializing in patent, copyright and trade secret ligitation, including computer software and multimedia products.

Joyce is a member of the musical group Negativland. They have worked in collage based audio work since the early 1980's, using appropriated "found sounds". Since they were sued for copyright infringement, they continue to pursue issues of "fair use" under copyright law through articles, lectures, and public discussions.

Organizations involved in intellectual property rights issues:

National Writer's Union 873 Broadway, Ste. 203a New York NY 10003 212/254-0279; Internet address: 72400,1712@compuserve.com

California Lawyers for the Arts (CLA) Fort Mason Ctr., Bldg.C, rm.255 San Francisco, CA 94123 415/775-7200

The American Library Association (ALA) Library and Information Technology Association (LITA) 50 East Huron Street Chicago IL 60611 FAX (312) 280-3257

The Union has a technology campaign, which examines the issues of copyright of writers' work in electronic media. It publishes "The Guide to Playing Fair on the Electronic Highway" and the NWU Electronic Publishing Working Paper.

CLA provides lawyer referrals, arbitration, educational programs, publications, and library resources for artists of every type. They run a clinic on intellectual property rights, and do legal research about pending legislation affecting artists.

The ALA tracks governmental legislation on issues concerning libraries, including intellectual property rights and digital technology issues. A newsletter is available electronically from the ALA Washington office free of charge. To subscribe send message "subscribe ala-wo [your name]" to bitnet address listserv@uicvm, or call editor Fred King at (202) 547-4440.

For further reading:

Frith, Simon. Ed. Facing the Music. New York: Pantheon, 1988.

Schiller, Herbert I. Culture, Inc. New York: Oxford University Press, 1989.

Mosco, Vincent. Pay-per Society: Computers and Communication in the Information Age. Norwood, New Jersey: Ablex Publishing Corp., 1989.

GLOSSARY

CD/ROM - A compact disk that functions as a read-only memory, used by computers with multimedia capabilities to retreive moving pictures and sounds stored on any part of the disk.

compulsory licensing - refers to a law requiring owners of songs to allow the recording or performance of a title work in exchange for payment set at a reasonable rate.

copyright - The legal right granted to an author, a composer, a playwright, a publisher, or a distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work. Anyone wishing to reproduce the work is obligated to seek permission from the holder of the rights to the work.

digital - Expressed in digits, or numbering code, especially for use by a computer. digital recording - A recording technique in which sound waves are converted into numbers and stored for later reproduction. Also refers to any record, tape, or disk that is recorded using this process. royalty - A share paid to a creator of an artistic work out of the proceeds resulting from the sale or performance of his or her work.

fair use - exceptions to the law, allowing copyright-protected material to be exerpted for special purposes, such as scholarly research, news reporting, and parody, without permission from or payment to the owner of the rights to the work.

morphing - a technique used in digital animation as a special effect which makes one image seem to transform into another. For example, during the 1992 presidential election, Silicon Graphics demonstrated a photo of Bush and Quayle turning into Clinton and Gore.

public domain - The status of creative works, publications, products, and processes that are not protected under patent or copyright.

recoup - To reimburse, or to deduct or withhold (part of something due) for an equitable reason. For example, a musician may contract with a recording studio to cut a record of his or her work, in exchange for subsequent royalties earned from the work payable to the studio, in reimbursement for production and marketing costs.

sampling - The act, process, or technique of selecting an appropriate sample from one creative work, to incorporate into a new creative work. For example, rap artists may take part of an old blues song, and mix it into a recording of their own original work, like an audio collage.

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