In August of 1991, SST Records released a single by the band Negativland simply called U2, featuring snippets of U2 recordings, outtakes from Casey Kasem's American Top 40, and a mangled version of U2's song "I Still Haven't Found What I'm Looking For."
Shortly after the release, Island Records filed a lawsuit against Negativland and SST over copyright infringement and deceptive packaging (the cover featured the letter 'U' and the numeral '2' in huge type). An out-of-court settlement was reached, but Island demanded repayment for its legal expenses and other incurred costs.
Apparently this cost the band over $90,000 US. A considerable sum of money for a independent recording act, one who in the interview mentioned below estimate they didn’t as a band earn that much in over twelve years.
In June of 1992 U2's publicist in L.A. contacted Mondo 2000 magazine on behalf of the group's guitarist, The Edge, with the idea of doing a rare interview concerning the group's Zoo TV tour and its use of technology.
Mondo editor R. U. Serius then (RUS), without The Edge's (E) knowledge, contacted his friends Don Joyce (D) and Mark Hosler (M) of Negativland with an invitation to participate in the interview. On June 25th Negativland joined R. U. Serius to await the following call from The Edge in Dublin.
The general interview is a really good read, the Edge who was really put in a spot, continued with the interview and was not just good humoured but also allowed the Negitivland members to have their say and responded in what appears to be a honest and open manner, all credit to the Edge, I'd imagine most people in his position would have simply hung up the phone – I know I would have.
I've included a snippet from the interview to show the crux of the issue presented by Negitivland to the Edge. I suggest reading the entire interview, especially those of you interested in sampling and the issues surrounding that means of media manipulation.
I care little for U2 or the members of the band, yet in the context of this interview The Edge was not just good humoured but also allowed the Negitivland members to have their say and responded in what appears to be a very honest and open manner, all credit to the Edge and much respect.
"M: One thing I'm curious about--there's been more and more controversy over copyright issues and sampling, and I thought that one thing you're doing in the Zoo TV tour is that you were taking these TV broadcasts--copyrighted material that you are then re-broadcasting right there in the venue where people paid for a ticket--and I wondered what you thought about that.
D: And whether you had any problem, whether it ever came up that that was illegal.
E: No, I mean, I asked the question early on--is this going to be a problem?, and apparently it, I don't think there is a problem. I mean, in theory I don't have a problem with sampling. I suppose when a sample becomes just part of another work then it's no problem. If sampling is, you know, stealing an idea and replaying the same idea, changing it very slightly, that's different. We're using the visual and images in a completely different context. If it's a live broadcast, it's like a few seconds at the most. I don't think, in spirit, there's any...
D: So you would say that a fragmentary approach is the way to go.
E: Yeah. You know, like in music terms, we've sampled things, people sample us all the time, you know, I hear the odd U2 drum loop in a dance record or whatever. You know, I don't have any problem with that.
D: Well, this is interesting, because we've been involved in a similar situation along these lines...
RUS: In fact, maybe it's time for me to interject here. The folks that you've been talking to, Don and Mark, aside from being occasional contributors to MONDO 2000, are members of a band called Negativland.
If you want to hear the single it can be streamed or downloaded from here.
The irony in this case is why the band sampled U2 in the first place (from the same interview):
E: Well, it's been good to talk to you and sort of figure out where you're coming from--it's a little hard to tell from the record, quite what your intentions were.
M: Do you want to know what inspired the whole thing, though?
M: It was getting the tape of Casey Kasem. We heard that tape and we thought, this is so amazing, we cannot be the only people to have this. We have to share this with the whole world. It's too great.
E: Ha ha ha.
M: And then he was talking about U2, so we said, "Let's use some music by U2," and the idea grew. That was sort of the seed of the idea and it just grew and grew.
E: Yeah, yeah. Well, it's been really good talking to you."
Another summery and view of the wider issures of the case taken from this article.
"Within two weeks, Island filed a suit attacking U2 on two counts, claiming that the song's cover art violated trademark protection and that its music's "unauthorized use of a sound recording" violated copyright law. Island demanded that every copy of the single and all materials for its promotion and manufacture be immediately delivered to the company for destruction and that U2's copyright be reassigned to Island. In less than a month, Negativland and SST Records stood to lose an estimated US$70,000 - more than Negativland had made in 11 years as a band. The group counted on fair use's wrinkle to justify U2.
But faced with massive potential expenses and growing pressure from both Island and SST, the band agreed to settle out of court. "It felt to me like my child had been kidnapped," remembers Hosler, who, with other members, suddenly faced terms of an injunction he couldn't afford to fight. SST, which stood to lose even more, pressured them to accept the settlement.
Two grim realizations dawned on the band members: The first was that the law, as interpreted, did not legitimize their aural collage as art. The second was that business interests within the music industry, relying on the economic expense of legal battles, had the capability to squelch small artists who sought to challenge the legal status quo. From the start, Island's argument had been one of economics:
Negativland was attempting to profit from U2's popularity, and the group had timed its decoy release to coincide with an upcoming U2 release (previously Joshua Tree had sold more than 6 million copies in the US).
And Negativland couldn't afford to prove themselves innocent.
"It wasn't a policy at Island records but a de facto understanding throughout the record industry," Grigg clarified. "There's a certain way things are supposed to be done.
If you don't play by the rules, they come down on you. If SST had paid the compulsory license fees for the song, this probably wouldn't have happened."
"But art has always had the job of using the best means available to make statements about individual life," he continues. "It's extremely effective to actually apply our hands to this media barrage, cut it up, and turn it into something else that comments on it. That's one of the best ways to make art that we can see right now. But that's the central problem: the laws don't realize the legitimacy of this."
According to Negativland, current statutes don't take into account any of a number of artistic forms and techniques, some of which may "actually conflict with what others claim to be their economic domain."
Appropriated art is commonplace in other milieus - Rauschenberg and Warhol made great use of it in the fine arts, and borrowed melodies are common in folk music - but it has yet to be acknowledged in contemporary musical forms. "If you read the copyright laws," Joyce says, his frustration showing, "there's only 'pay for everything you use' or parody. But surrealism? Unknown. Collage? Never heard of it. It's as if collage never happened."
Jeff Selman, an attorney who, through California Lawyers for the Arts, began to assist Negativland after the settlement, says it another way: "Whether or not someone would look at a visual or musical collage and say 'Yes, that's an allowable fair use' hasn't been tested. It's a fine-line distinction between what's pirating and what's fair use. But everybody may be trying to draw fine lines where they can't be drawn." He points back to the central argument in the whole case: "It comes down to an issue of money."
This is all history really, the world marched on, Negitivland continued to release records when the need/desire arose and I assume paid the legal costs Island Records incurred as per the out of court settlement. So why am I dragging this up today one might wonder.
Well, U2 are to tour here next year. So it was reason enough to trawl back to the above story and track for me, plus I downloaded the single to play on me radio show as my personal reaction to the begginings of U2 hype, yeah I don't care much for their music so I wanted to add in my own small way something linked to but not of this band.
Plus its a damn funny track, one I just missed out on getting a copy of the record when released and have ever since wanted for my collection. I sometimes look the single up on Gemm to see how much it'd cost me, currently theres a copy for US $115, well out of my price range for a curiousty item.
The concert tickets went on sale here yesterday, it sold out in less than 90 minutes, I believe the venue holds 38,000 people. As a side note I read somewhere yesterday that a U2 concert in Christchurch around 1989 had 90,000 people attend and was the largest turnout on that particular World Tour. So it's safe to bet this was going to sell out.
Within hours scalpers had placed tickets on New Zealand's version of E-Bay Trademe. Scalping is in my view an abhorrent way to make money. For a multitude of reasons, one that gets me is that due to some peoples practice those without the means to buy online or via the telephone or were just lucky enough to be in the right part of the queue to get a ticket before they ran out - you know them who don't have internet, credit cards or other facilities to do anything other than queue physically to purchase their ticket, possibly having to save specifically to afford the ticket.
Those fans who aren't wealthy are unjustly denied tickets by those with the means to bulk buy and then profit from that purchase, tax free to boot. General admission tickets were $99 (top priced seating were $199), not a huge sum, yet a significant one for those who don't have excess cash floating around, especially as we are heading towards Christmas, consider for a moment many fans will have children, mortgages and other commitments that purchasing a ticket(s) at $99 is a large outlay of cash.
Scalpers by artificially raising the price for those not lucky enough to get one initially only alienate and exclude those fans who simply can't afford vast sums for one nights entertainment.
Whilst the ownership of music is a luxury and attending concerts is too, for those fans who have followed a band such as U2 for many years should not be excluded due to personal financial circumstance, if they can afford the official ticket price and the other costs of attending that should be it, they should not be putting money in someone’s pockets who has no association with the event or the band itself.
If this practice goes unchecked then concerts, sporting events and so many other activities that are going to sell out due to excessive demand will simply become the domain for the rich and I for one am totally opposed to excluding segments of the marketplace from attending any event due to price alone. Sure not everyone can afford nor go to everything, but I don't want our society to be further fragmented and segmented by financial status alone.
There’s been a second concert scheduled, so perhaps punters will get another crack at securing a ticket at the advertised price and no doubt for scalpers to try their luck again and make some more money.
I guess, I also get to play the offending Negitivland single again, which I may just do. Probably not til the event itself, no need for overkill now is there…
… or more likely that’s it for me and this particular curious piece of musical trivia and its offending single.