Negativeland v. Casey Kasem

When the experimental musical group Negativland took on U2 and Casey Kasem, they didn't know it would spell the near end of their careers. The conceptual art terrorists' work relies heavily on found-sound appropriation, cultural parody, and liberal interpretations of the U.S. Copyright Act. Much of the band's recorded work pushes the limits of art and theft, but it wasn't until 1991, 11 years and five records into its career, that someone thought Negativland had gone too far with what has been called "the most truly subversive rock record ever made." Negativland - Mark Hosler, Chris Grigg, Don Joyce, Richard Lyons and David Wills - constructed a spoof containing two deconstructivist parodies of the U2 hit "I Still Haven't Found What I'm Looking For," sampling small segments of the original, plus CB radio transmissions, an interview with Bono (as well as lead "vocals" from Wills) and, to top it off, excerpted bloopers from Casey Kasem's American Top 40 radio program. The outtakes were recorded by a disgruntled engineer and circulated among people who collect that sort of thing. It's a standard American Top 40 song dedication gone horribly awry. Casey's discussing a dead dog named Snuggles, and evidently someone played a song he considered a bit too perky to be followed by a death dedication. "I want somebody to use his fucking brain to not come out of a record that's uptempo when I gotta talk about a fucking dog dying!" is one of his saltier moments. Not only is Negativland's 13 minutes of music legendary, notorious and rare, it's also hilarious. The group also got a hold of another blooper Kasem made while leading into a U2 song with one of his inimitable introductions, which quickly breaks down: "This is bullshit. Nobody cares. These guys are from England and who GIVES a shit?" "We were handed the tapes back in 1990," says Hosler, Negativland's most outspoken member, "and immediately upon hearing them, I started laughing so hard I started crying and I fell out of my chair, writhing around because I couldn't stand it. It was so great. And of course, given the way our minds work in Negativland, my immediate thought was 'must make record.' "That's the thing about our records," he continues. "They start out as really small ideas and then at a certain point it kind of snowballs into this 'sum is greater than the parts' effect. Not only a really cool set of parts, but it ends up transcending it and becoming something really, really neat." Kasem, who didn't think being skewered by Negativland was particularly neat, threatened to sue if the CD was ever re-released. But U2's record company, Island, had already seen to that. The result was a classic David-and-Goliath contest, pitting a band that never sold more than 15,000 copies of a record against a world-famous group which sells millions. Negativland spent four years battling the giants, winding up without a record label and exhausting their own resources fighting for the right to make their art the way they wanted to make it. In the process, the U2 Negativland CD, which originally sold for less than $15, became a highly coveted collector's item with copies fetching up to $250. Hosler, who now lives in Washington state, and his bandmates, who are based in Oakland, started creating weird audio collages while the five were in high school. Originally begun as a hobby, they all had day jobs -- Wills works as a cable installer for TCI; Joyce originally designed computer graphics for a software company and Hosler worked at a day-care center. Their satirical work often takes potshots at the mainstream media, sometimes with unpredictable consequences. Half of their 1989 album Helter Stupid was based on a controversy brewing over a patricide case in Minnesota. It seems a young man there had killed his family with an ax, and Negativland, hearing of this, hatched the rumor that an argument over one of their songs was the cause. The story went out across the country as the band fielded interview requests from Rolling Stone and scarfed some free publicity. The whole escapade was documented, Negativland-style, as an audio collage. Negativland's music has always incorporated samples of radio programs, talk-show snippets, advertising jingles, television broadcasts, and other sounds extractable from the public domain. The resulting collages use these disparate source materials to create cogent conglomerations of music and information. That's an entirely different approach from hip-hop bands that take a bass guitar sample from a James Brown record and build a song around it -- for one, Negativland's music is noted more for non-musical sampling, and, secondly, the resulting work is often thought-provoking, political, and controversial. Less than two weeks after the U2 single was released on the indie punk imprint SST, Negativland was nailed with a 180-page lawsuit from Island, which objected to the cover artwork of a U2 spy plane with the huge letter U and number 2 dwarfing the tiny Negativland name trailing across the bottom. "There can be no doubt that consumers will be deceived by the U2 Negativland artwork into falsely believing it is a U2 album," penned one of Island's attorneys, stating that the subversive single could spoil the label's plans to deploy U2's long awaited new album Achtung Baby. The suit also claimed that portions of the U2 tune had been "copied without authorization" and that the record's second song, replete with "expletives and curses" courtesy Kasem, would damage the public's perception of U2. "It must be emphasized that U2 has cultivated a clean-cut image, and its recordings never include such language. The band's image will be tarnished," whined the lawsuit. Negativland and SST, outgunned by Island and its fleet of lawyers, quickly capitulated. The terms of the settlement demanded that all of the copies of the record be turned over to Island and that the copyright in the recording be relinquished and reassigned. Negativland and SST stood to become almost $80,000 poorer after legal fees and settling the suit. In addition, Negativland was ordered to turn over the original master tapes of the recording. "Well, that's what they think," says Hosler. "We sent them tapes that we said were the master tapes." Outraged that a band of U2's stature and a giant record company would bother to trample and put out of business a group that could never possibly be a threat to them, the band began to fight back. "I don't think we thought too much about the idea that it could get sued," says Joyce, "because we had been doing this for so long, using found stuff on our records from the beginning." "It became a desperate battle," adds Hosler. "We felt like we were fighting for our lives. What we were being sued for wasn't just for a particular release. We were being bulldozed for the entire way we work and create. It's the passion you might feel if you're fighting back because people are oppressing you for the color of your skin or your sexual preference. It just felt terribly oppressive. But I think they were simply protecting their turf. As far as they were concerned, we stole their property." Adding insult to injury was SST, whose president, former Black Flag guitarist Greg Ginn, refused to split the costs of the Island settlement with Negativland and stuck them with the bill. At this, the band stepped up a campaign of sending faxes and press releases detailing their plight to anyone who would listen. By the following February, SST was threatening to sue Negativland, demanding the band shoulder the cost of the Island suit. SST was ready to take it out of their hides, noting that "at the band's current level of sales, SST would recoup (its) losses in the year 2257." The band quickly left SST (via a good-bye letter signed "no longer yours") and were keeping track of every document, fax, letter, and scrap of paper relating to the U2 predicament. The results were compiled and released in a 1992 magazine called The Letter U and the Numeral 2, a detailed account of what happened to Negativland as well as a platform for the band to outline its proposed changes in the U.S Copyright Act. When the magazine was released, the band received much media attention, not only from the music and underground press but in the mainstream as well -- which they desperately needed. "We were in a death grip," recalls Hosler. "We were up against all these folks who had all this money, and we went up against them with our mailing list and stamps and a Xerox machine." Hosler scoffs at any notion that the U2 event was a performance orchestrated by the band, like the Minnesota patricide case. "No one's going to do a publicity stunt that's going to cause them to lose all the income from the last six years of their life." Though Negativland made several attempts to contact the members of U2, the closest they came was the band's management, who explained that it was out of their hands. Negativland persuaded Island to sue only for costs and not damages, but U2 never commented publicly on the matter until both Hosler and Joyce orchestrated a polite ambush of U2's Dave Evans (The Edge) during a telephone interview for Mondo 2000 magazine. The two engaged the Irish guitarist in conversation about U2's use of sampled TV broadcasts and public domain items before revealing their identities. The interview, which is included in The Letter U and the Numeral 2, has Evans responding both with disbelief and tacit agreement to Negativland's tag-team interview and subsequent pleading of their case. It ends with Hosler actually asking The Edge to loan Negativland money to help them out. "This is the most surreal interview I've ever had in my life ... and I'll think about that request" was all he could muster. "We actually sent out a very serious proposal, and it would have been nice if he had just done the courtesy of responding," says Hosler now. "Even to say, 'no thanks,' but of course he couldn't even have his secretary do that." Meanwhile, the band's feud with SST had gotten even nastier. The Letter U and the Numeral 2, released in 1992, included in its barrage of documentation a copy of SST's credit report (requested by a "Gary Powers" - the pilot shot down in the U2 spy plane) and reprinted an SST bumper sticker -- prompting the label to file suit against Negativland, this time for copyright infringement. SSTs trademark slogan, "Corporate rock still sucks" was altered to read "Corporate SST still sucks rock." "When Island records first sued us," Hosler remembers, "it was very interesting and it became very inspiring creatively. It gave us all sorts of ideas. But once we got sued by SST, it got really stupid." So Negativland discovered that -- surprise -- an indie label with a supposedly enlightened punk aesthetic could be even more bloodthirsty than a huge multinational corporation with ties to the defense industry. But this time, Negativland reluctantly entered the litigious fray, countersuing SST with pro bono (no, not that Bono) legal help. The almost $260,000 in free counsel was the shot in the arm the band needed. Almost immediately, things started picking up. In a parallel case, the U.S. Supreme Court ruled in favor of another parody recording, a reworking of Roy Orbison's "Pretty Woman" as recorded by 2 Live Crew. Ginn threatened to parody Negativland with an art collage record of Negativland snippets called Positivland: OJ, but it never appeared ("'Good luck trying' is what we said," laughs Hosler). Ginn was allowed to insert four pages of his own text in Negativland's expanded version of its original magazine, the recently released Fair Use, which he used to promote Positivland with multiple-choice questions implying that members of Negativland were "cushioned upper, middle-class malcontents." Ginn did not return repeated phone calls. SST and Negativland's out-of-court settlement dismissed the copyright infringement and finally divided the losses from the Island debacle with SST paying 25 percent and Negativland the rest. In addition to royalties, the band receives donations from sympathetic fans and supporters, and now, Hosler says, their debt to SST is nearly paid and for the first time in five years will actually begin to make money from their SST back catalog, including Guns, Escape From Noise and Helter Stupid. "The next royalty statement we get should put us in the black, and we should start getting checks again from SST," says Hosler. "Of course, I'll believe it when I see it." In the meantime, Negativland is still afloat, as they have recently put out an album, Free, and continually release excerpts from the live weekly radio show they've had since 1981, Over the Edge. After nearly four years, Fair Use ends with Negativland's persistence finally paying off, at least with U2 and Island records agreeing to give the rights of the U2 single back to Negativland. "Eventually, it became clear to them that we were never going to go away," Hosler says. "We made it clear that we would never stop trying to negotiate for the release of our baby which they kidnapped. When we said that we were putting out a book they finally decided that we really were, seriously, never going to go away, and that even though we were a tiny, tiny little pimple we were pretty good about getting people to be on our side. Eventually, even they did, but it took 3 1/2 years." Indeed, one of the book's final memos is from U2's management offering to sign any letter Negativland sent "on the condition that you stop writing to us." Following a symbolic bonfire, where Hosler burned all the documentation surrounding the case (and an effigy of the dog Snuggles), Negativland looks back at the entire incident. "I can't believe we kept it up for over four years, but we did," he says wearily. "We got to peer inside what's going on inside the producers of our mass culture makers, and what happens when some little grassroots outside cultural force starts battering at their huge fortress walls. What's amazing is we finally got through to them. Sometimes persistence does pay off. I would never wish it hadn't happened. If I had all to do over again, I'd do it. The thing that kept us going more than anything was that we kept our sense of humor about it and we dealt with it like a giant conceptual art project." Much like the continuing Over the Edge series, including a new offering Hosler and Joyce are very excited about called Sex Dirt. "In all the years we've done this we've never really dealt with sex," says Hosler of the project, which is about "sex and dirt and germs and being clean and housecleaning and cleaning products and sex ed films from the '50s and stuff like that." Another new work in progress, he says, will "take on one of the world's largest soft drink manufacturers. It's the most overtly oppositional thing we've ever done." Negativland is featured in a new experimental documentary film, Sonic Outlaws, a cut-and-paste treatise on copyright infringement, fair use and "culture jamming." This in addition to the Fair Use book, which contains a sound collage CD called Dead Dog Records about public domain, SST, fair use, the copyright act, and lawsuits. The 270-page tome also contains a lengthy appendix dealing with Negativland's experiences with and attitudes regarding issues regarding the ownership of information and culture. In short, Negativland believes that fragments - "anything short of the whole piece" - should be fair game for appropriation. "We wanted the book to be more than just our own soap opera," says Hosler. "I think it makes it clear that we have a bigger picture in mind, and that it's useful as a reference. It's even used as a college textbook, which I'm thrilled about. We've gotten requests from law libraries. There's nobody else out there articulating this point of view on intellectual property and copyright law." Hosler now believes that U2 may have been a more volatile target for a parody because of their self-image. "U2 want to think of themselves as these pretty cool, kinda hip guys," he explains. "We came along and did things that punctured their image, and it really bothered them because it's their own image of themselves. Even though they're millionaires, we kept playing on the fact that they really care what people think of them. I really don't think Axl Rose or Mick Jagger gives a shit, and if we had done a record called Guns and Roses or Rolling Stones, I don't think things would have turned out the way they did. They still would have come along and crushed us, but it wouldn't have been an issue. But U2 do care. And it bothers them to be perceived as censoring someone else's work. It bothered Casey Kasem." At the end of Fair Use, the final transmission from Negativland is to Kasem, whose signature is the only one needed at this point to turn the U2 single back to Negativland once and for all. The band has promised to release the record with new artwork and to donate the royalties to Kasem or to the charity of his choice. They even sent him a copy of Hit Men by Fredric Dannen, an account of corruption, exploitation, and cynicism in the music industry, after Kasem suggested they change their name to 'Positivland' and sent them a copy of Norman Vincent Peale's Power of Positive Thinking. "We pushed it as far as we could," says Hosler. "Casey Kasem is never going to change his mind. We never would have gone after him the way we did if he had just been consistent and said 'I don't like what they did and I'm glad it's gone and good riddance and they got what they deserve.' But he said something else." In an April 1992 interview at a Las Vegas nuclear protest, Kasem said, "No, I didn't sue them," in reply to a query about Negativland. "I never called a radio station and said, 'Don't play it.' They can play it if they want to. It's a free country, we have the First Amendment, and I'm against censorship of any kind." Yet in that same month, Kasem's lawyers threatened Negativland that he would "pursue all legal remedies available to him" if the single were ever released again. In an effort to persuade him to reconsider, Negativland has been holding his feet to the flame, so to speak: Kasem's address and phone and fax number are included in Fair Use so that fans and concerned individuals can contact Kasem and ask him to reconsider his position. A person Hosler describes as "an irresponsible hacker kid" even phoned Kasem with a death threat, resulting in the FBI contacting Negativland. Joyce and Hosler, though, have all but given up on him and are nearly resigned to the fact that the U2 single may always be an unheard rarity -- and that's the way Kasem wants it. "I wouldn't want my mother to hear it, how's that?" says the man who was once the voice of Scooby Doo. "I wouldn't want God to hear it. I don't want to broadcast something that I'm not proud of. It's not something I want to flaunt. I don't feel proud of myself for using language like that or even being upset with people who were maybe responsible for me using that language. I just don't think it's part of my lifestyle anymore." "Oh, I bet God's heard it," laughs Hosler when informed of Kasem's comments. "Up there in the big radio station in the sky, mom and God are already tuned in. Doesn't he know that more people have been hearing his little slips of the tongue because it's been written about so much? I mean, he's been arrested for civil disobedience. He protests nuclear power. He's an animal rights activist. And ... we're glad he's helping them, but why doesn't he help those poor little culture victims, too? Relative to the world he's in, he basically looks like a cool guy. It's just that we did this thing that caught him in kind of a weird lie where he didn't look so good." "He's terribly, terribly embarrassed by it," concurs Joyce, "and I'm not sure why. I think he lives in kind of a fantasy world. It's the image he's trying to maintain that's embarrassing in my opinion. Maybe if we sent him a copy of the book and he saw that he looks kind of silly ... it's not like it's a secret anyway." Not at all, since at least one-half of the single and all the lyrics are downloadable via several Internet sites. Good cyber-sleuths can track it down easily. "But from an art standpoint, it occupies a unique little place in the minds of the public," muses Hosler. "It's like some painting no one's ever supposed to see, it shouldn't exist, so everyone starts trading Xeroxes of it." Negativland's CDs and book (except for the U2 single) are available from local record stores or from negativmailorderland, 1920 Monument Blvd MF-1 Concord, Ca 94520, or examine their website at http://sunsite.unc.edu/negativland

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