East Bay Monthly

Fish Futures

For years, fish has been touted to Americans as the food that keeps the Japanese trim and their hearts hardy. Every nutrition textbook lists fish -- specifically fatty, cold water ocean fish, like salmon, mackerel, sardines, and herring -- as the best sources of omega-3 essential fatty acids and protein.

These days, you can't buy a diet book without reading about the restorative properties of omega-3s. In "The Healthy Kitchen," Andrew Weil and Rosie Daley, Oprah's favorite chef, recommend fish every other day, especially salmon. Omega-3 act as an anti-inflammatory against autoimmune disease, builds bones, staves off depression ("Prozac of the deep," some call it), and steadies the rhythm of the heart, and that's the short list. In April, two more long-term studies, reported in the New England Journal of Medicine and the Journal of the American Medical Association, announced that eating omega-3-rich fish at least once a week significantly cuts the chance of your keeling over from a clogged ticker.

The fervor for fish coincides with the bad rep meat and poultry have taken on over the last decade. Since at least four children died and more than 700 people fell ill from eating contaminated hamburgers at Jack in the Box during the winter of 1992-93, meat and poultry have been associated with a gang of bacterial "superbugs" carried mainly by livestock feces. Then came Mad Cow disease.

"Our fish orders shot up when Mad Cow came out," says Emeryville restaurateur Adam Weig. Far and away, the fish that customers want is salmon.

"I can't buy enough of it," says Ted Iijima, fish manager at the Berkeley Bowl grocery, as he scours the pre-dawn San Francisco docks for salmon a week before Mother's Day. "Come winter, for the first time, I'm going to buy salmon that's been frozen during the season," he confides almost sotto voce. "The people in Berkeley, especially, want to know, 'Is this fish wild or farmed? How much mercury is in it? Does it come from polluted waters?' The season'll be over, but my customers still want wild salmon."

Unfortunately, wild salmon aren't always in season, nor is there enough to go around. But that's not to worry. In the era of the global marketplace, there is a plan B: fish farms.

More than half of the salmon Americans eat is farmed, that is, not hunted and dragged flailing from the sea but raised docilely in giant sea cages floating in the ocean, where they grow big and fast on high protein diets, just like their feed lot and henhouse friends.

"The demand is going to increase and the world's ability to produce commercially caught fish has pretty much peaked," says Dan Swecker, secretary-treasurer of the Washington (State) Fish Growers Association and also a state senator. "The increased demand is going to have to be supplied by aquaculture" -- meaning farmed -- "products."

If he's right, and if it will, there's still the little matter of its record. Much of the nutritional benefit of wild fish is lost in the farmed variety because of their artificial diets. Proximity to farmed salmon has led to rampant disease and decline among native fish in every part of the world except the Pacific Northwest...so far. Meanwhile, genetically engineered salmon await FDA approval, part of the vast, uncontrolled biologic experiment in which we are all subjects. The dilemma is apparent: To fill an extraordinary demand built on genuine need, the multibillion dollar aquaculture industry has turned the carnivorous salmon into a plant eater, while changing its look, taste and nutritional value. The dilemma doesn't end there: If they ruin the seas to grow an inferior product, can you call it a solution?

Fat Farm

Dan Swecker is speaking over the phone from St. Petersburg, Florida, where he is attending a National Association of State Aquaculture Coordinators. World aquaculture is a bustling $56 billion-a-year global enterprise and salmon is a top performer. It's in 37 percent of all American food establishments, and more than 70 percent of the "white tablecloth" joints, more than any other fish.

A study of the global aquaculture industry, released last year by the David and Lucile Packard Foundation, called salmon farming "the most important agriculture industry in the world." Nor is it a business for small fry anymore. As of three years ago, all nine ocean-based salmon farms in the state of Washington (with Maine, the only two states that produce farmed salmon), were absorbed by one Norwegian company, Pan Fish, the world's third largest fish producer. The industry has been consolidating rapidly. Six companies, from the Netherlands, Norway and Canada, now produce over half of the world's farmed salmon. In British Columbia, it's the same as Washington except, with laxer environmental laws and 10 times the farms, Pan Fish shares control with a handful of multinational giants.

The magic word is consistency, as Eric Schlosser so ably noted in his book about the McDonaldization of everything, "Fast Food Nation." Farmed salmon avoids the inconsistency of ocean fish.

"Farmed salmon is much more consistent than wild salmon," says Swecker. "You can grow it year-round. The buyer can expect to have it on his doorstep 52 weeks a year. He can plan a restaurant menu. And the people he serves can plan on having it when they go there. Anytime you can standardize something it makes it more convenient, instead of wasting a lot of time looking for alternatives."

The salmon he's talking about is not the one you fish for past the Golden Gate Bridge. That's Pacific salmon, of which there are five different West Coast species -- Chinook (King), Coho (Silver), Sockeye, Pink and Chum -- and a sixth in Asia. Each has different characteristics: more oil, more fat, more flavor, different flavor.

The salmon Swecker means is Atlantic salmon. Nearly all the farmed salmon in the world is the single Atlantic species. The first West Coast fish farmers bred Coho and Chinook, back in the '70s, but the darn things wouldn't quit swimming. That made the farmers mad, since swimming burns fat, ill-advised in a business that sells by the pound. So they brought in Atlantics, who don't mind treading water for a living.

At first the farmers tried to re-create their natural diet, feeding them lots of fish. But salmon can eat 10 times their body weight, which meant they were killing 10 pounds of fish, or some substantial fraction, for every pound of product. So fish feed manufacturers started adding vegetable proteins, such as soy, canola, corn gluten, animal byproducts, including poultry and feathers, and vitamin and mineral supplements. Fish feed currently consists of only 35 percent fish, and falling.

Like herbivorous cattle fed meat, carnivorous fish are now largely vegetarians. The result is a blander fish, which, according to Swecker, is just what the public wants. "American consumers generally prefer bland white fish as a major preference," he says. "It's not so 'fishy.'"

It also has less nutritional value, says Frank Hu, the lead author of the 16-year study of omega-3 and cardiac disease that appeared in April's Journal of the American Medical Association. Hu is assistant professor of nutrition at the Harvard School of Public Health.

"Farm fish usually doesn't contain much omega-3 at all. Only fish from the oceans contain many omega-3 essential fatty acids." Essential fatty acids are not produced by the body and must be absorbed through food. The April study did not look at farmed fish, although Hu says "previous studies have documented that."

"Depending on what kind of food they're eating, it will store in the body as omega-3 or -6. Fish in farms eat mostly corn or soybean and will store omega-6 in the body. Wild fish and algae will be stored as omega-3."

Omega-6s are found in vegetable oils and processed foods, among others. They have a contrary, though balancing, effect on 3s. A one-to-one ratio is ideal, according to the American Cancer Society. However, "many Americans have 10 to 20 times more omega-6s than omega-3s in their systems," ACS says. Studies show that women with breast cancer have two-to-five times more omega-6s than omega-3 fatty acids in their systems." When diets high in omega-6s are fed to fish, the result is the same as Junior shoveling Big Macs down his gullet: it super-sizes 'em.

Bland or no, consumers still prefer their salmon to look like salmon, which is why feed manufacturers add astaxanthin, a chemical analog of the actual pigment, to pink up the flesh. As with omega-3, wild salmon have pink flesh due to their diet. Farmed salmon, living like couch potatoes, each confined to an area the size of a bathtub, bloat and grow white with fat. Concerned market researchers cornered shoppers with "SalmoFan"TM color cards produced by Roche, the drug company behind astaxanthin, and learned something important: "Deeply colored flesh was associated with higher quality, better tasting salmon," according to sales literature for Sysco, the giant food service supplier. "This market research indicated that consumers may be willing to pay more for deeply colored salmon."

The color that resonated strongest with the targeted group was Number 33, which, in the Big Box carton of Crayolas, falls midway between "Red-orange" and "Tickle Me Pink."

You Can't Go Home Again

This year's salmon season has been a good one for California fishermen, with Chinook (King) salmon reeling in at 20 pounds. Northern Alaska is actually having a bumper year. Good, of course, is relative. The 6,000 winter run Chinook salmon fished off California last year was disastrous compared to the 100,000 in 1967. At the same time, it's 300 times better than the measly 200 from 1990.

What improvement there is in the salmon population is due to the creation of hatcheries by the state and federal governments, especially in the decades after W.W. II, to offset the damage to spawning grounds from dam construction and the subsequent diversion of water. Hatcheries capture returning females, strip them of their eggs, and fertilize them, producing millions of viable eggs instead of hundreds or thousands. They then raise the fry in protected tanks until they can be released into the wild. They even truck many of them directly to the ocean, to make sure they get there. Some 80 percent of the salmon off of California are hatchery bred.

Every Pacific salmon species has been on and off the endangered list in the last decade, owing to the devastation of their spawning grounds, including the once mighty Klamath, Snake and Columbia rivers, now trickles of their former selves. Those have been dammed, diverted and drained, with the downstream Klamath water, for example, so hot, scarce and polluted that it's killed hundreds of thousands of salmon in the last few years. The impact is not just on fish, but also on the people, towns and river-dependent economies that live off them. Today, the Coho are nearly extinct in the Klamath, winter-run Sacramento River Chinook are on the endangered list, and Chum are threatened in the Hood and Columbia Rivers.

By contrast, aquaculture is every politician's dream. Salmon farming in British Columbia is a $250 million industry, providing well over 2,000 full-time, year-round jobs in small country towns around Vancouver and Victoria. The farms purchase nearly all of their supplies and services in the same vicinity. Farmed salmon is the province's largest agricultural export. The same good fortune explains why the recession-bogged governments of Ireland, Iceland and others are eagerly exploring ways to jump in on the aquaculture business, despite its many drawbacks.

The principal drawback is that it's an ecological nightmare. "Fish farming degrades coastal waters through discharge of nutrients and chemicals, and it disrupts coastal ecosystems by the introduction of exotic species," writes Rosamond L. Naylor, senior fellow at Stanford's Center for Environmental Science and Policy, and the author of numerous cross-disciplinary studies on aquaculture. In the Pacific, Atlantic salmon are exotic. "The ocean's capacity to assimilate wastes and maintain viable fish populations is being challenged by aquaculture's continued growth."

While waste, disease and ecological havoc have been largely quiescent in the Pacific Northwest, the rest of the world has experienced very different results. In Norway, a particularly noxious parasite called Gyrodactylus salaris, imported from a Swedish fish farm, single-handedly wiped out every salmon in dozens of farms and rivers. Sea lice, found in the single digits on wild salmon, grow fruitful and multiply in the close confines of sea cages.

In Scotland, the farmed fish industry has been blamed for a toxin that is ruining the shellfish industry there, although, as elsewhere, numerous factors are at play. Scottish farmed salmon also suffer from heart disease, ignited by the stressful conditions of farm life.

In Chile, a pending study by Claudio Miranda, of the Laboratory of Aquatic Pathology, found antibiotic-resistant bacteria in fish farm effluent that was "significantly higher" than the influent, the feed or any other element. Chile reportedly uses many times more antibiotics on their fish than elsewhere.

In the U.S., according to Dan Swecker and others, vaccines, which are given early on in much smaller quantities, have greatly reduced the need for antibiotics. One of the two is necessary, because, just as with feedlot animals, diseases are otherwise rife in 10,000-square-foot cages packed gill-to-gill with fish that eat and swim in their own muck.

In the past year in Maine, the salmon farming industry was forced to destroy two and a half million fish afflicted with Infectious Salmon Anemia (ISA). The same disease shut down the industry in New Brunswick two years earlier. First identified in Norway in 1984, ISA soon spread to Scotland, New Brunswick, Nova Scotia, and Chile. To date, it has not hit the Pacific Coast.

North to Alaska

Reports such as these have clearly shaken the state of Alaska, in which wild salmon account for hundreds of millions of tourist and commercial fishing dollars, as well as the sustenance of many citizens. Salmon farms are banned in that state. In 1999, the Alaska Department of Fish and Game issued a "white paper," renewed this past March, on the perils of the Atlantic salmon invasion. It pulls no punches about the alien fish: "The farming of Atlantic salmon by other states and nations poses a new and perhaps more devastating threat to the survival and abundance of wild Pacific salmon" than even the historical ravages of "dams, urbanization and deforestation."

More than disease or drugs or devastation of the sea floor, Alaska is worried about the colonization of its waters by Atlantic salmon escaping from ocean-based sea cages. "The annual release of tens of thousands of Atlantic salmon into the Pacific Coast ecosystem amounts to biological pollution of the ocean and poses an enormous threat to wild Pacific salmon," the White Paper states. While it is a different species, and thus unlikely to interbreed, "introductions of non-native species have frequently resulted in unexpected and often catastrophic consequences from habitat destruction, diseases or parasites, hybridization, reproductive proliferation, and predation and competition."

The industry, backed by the federal government, downplays those worries. A National Marine Fisheries Service report on "The Net Pen Salmon Farming Industry in the Pacific Northwest," released last year, insists there is "little or no risk" of hybridization and colonization of Atlantic salmon in the Pacific. The report notes decades of aggressive yet unsuccessful attempts to introduce Atlantics as sport fish. It estimates that one million Atlantic salmon have escaped from sea cages into Puget Sound and British Columbia since 1990 with no evident propagation. It says that "few prey items of any sort have been found in the stomach contents of escaped Atlantic salmon which have been recaptured."

In other words, the domesticated salmon, which are able to live for months without eating, as are wild fish returning to spawn, have thus far been unable to establish themselves in the Pacific Ocean.

John P. Volpe, a professor of invasion biology at the University of Alberta, disputes that, saying conditions have changed. Diminishing native stocks and devastated habitats have left Pacifics more vulnerable than ever. Volpe says he's found Atlantic salmon in 80 percent of the British Columbian streams he's recently surveyed, including 14 adults in one stretch of one river.

Frankenfish

Of potentially greater concern are genetically engineered salmon, dubbed "frankenfish" by their detractors and currently under review by the FDA. A Waltham, Massachusetts company, Aquabounty, Inc. has taken Chinook growth hormones and spliced them onto the Atlantic salmon genome, halving the time necessary to grow farmed salmon. Farmed salmon already grow at least twice as fast and wild fish.

The real solution, the "sustainable" one, will take longer than the two-to-four-year attention span of most politicians or even the public: stop trawlers that destroy the ocean floor and kill four times more fish than they want (the so-called "bycatch" is thrown overboard, dead or dying); stop killing species faster than they can reproduce; clean up the oceans; restore freshwater habitats, and make it worthwhile for countries to not pollute, instead of the opposite.

"Destruction of the sea actually works to the fish farmers' advantage," says Anne Mossness, co-chair of the Industrial Fish Farm Reform Project for the Institute for Agriculture and Trade Policy, a non-profit advocacy group. "The more they pollute the sea, the more they can prove the need for their product."

"The Russian Far East has tremendous potential as a worldwide producer of wild salmon, for example," says Zeke Grader, executive director of the Pacific Coast Federation of Fisherman's Associations. "They could easily match Alaska's wild salmon production, if they could institute the infrastructure and management to make sure it gets to the plate. It would provide an economic incentive to control the watersheds, stop poaching and protect the environment from pipelines, mining and timber harvesting."

For the time being, aquariums and zoos around the country have joined forces with the organic food movement to encourage the use of sustainable seafood and hopefully slow or reverse the decline of wild fin- and shellfish. California's Monterey Bay Aquarium, along with several partners, has developed a comprehensive "Seafood Watch" program, complete with Web site and downloadable wallet cards that list safe and at-risk species. To learn more about Seafood Watch, visit http://www.mbayaq.org/cr/seafoodwatch.asp.

Bud Hazelkorn has reported extensively on meat and poultry issues for PBS Frontline, The New York Times and other publications.

Free Samples

When you're in the business of releasing and distributing experimental audio artwork, an e-mail bearing the domain name "CBS.com" probably spells trouble.That was the case this year for Mark Seilhamer, co-founder of the San Francisco record label Eerie Materials. On January 21, his computer flashed with a message from one wikryle@CBS.com with the subject heading: ROCKED BY RAPE."Rocked by Rape" was the title of a vinyl single that Eerie had released two years before. The record, by an Ohio-based trio called the Evolution Control Committee, was a satirical send-up of violence and sensationalism in TV news. It featured the voice of CBS Evening News anchor Dan Rather, with booming samples from heavy metal band AC/DC running underneath.The single begins with one of the nation's most trusted voices greeting listeners with a benevolent "good evening.'' As the AC/DC samples kick in, Rather intones one violent calamity after the next. The record ends with Rather's cheery, "good night and have a great weekend.""Rocked by Rape" is a four-minute tour of months of television news, distilled to what the record's creators feel is its essence. It was meant to point a finger, says Evolution Control bandmember Mark Gunderson, at the violence that pervades television news. It was meant as parody, as satire, as art.CBS didn't see it that way."Ladies/Gentlemen," CBS attorney Sanford I. Kryle began in his electronic missive. "A matter of serious concern has come to our attention. We have learned that you are offering for sale asound recording containing the CBS Evening News opening theme and Dan Rather's voice."This was no fan letter.Kryle's message went on to demand that Eerie immediately cease distributing and selling "Rocked by Rape" because it "significantly infringes upon the copyrights owned by CBS."Seilhamer pulled the record from the Eerie lineup. But Evolution Control continues to hawk the single on its Web site.It's unclear whether CBS plans to follow up its threat with legal action (neither Kryle nor Rather responded to requests for comment). But the flap the network started over the record still raises a question that has plagued judges, legal scholars and lawmakers since the early 1980s: what, if any, forms of digital sampling constitute fair use of copyrighted material? The question, once an arcane legal matter, has grown in importance as sampling -- and the technology to carry it out -- has become more commonplace.And its implications aren't restricted to the music industry. Given that most music today exists as stored bits on a CD or in a master tape, copyright and fair use issues in music are increasingly relevant to books, films, art and other creative, copyrightable endeavors whose wares can be expressed in digital form.Although the courts have not set rigid guidelines on the question of sampling, the most significant decisions on the matter have come down against the practice. Still, sampling itself shows no sign of letting up.To sample a catchphrase from sports broadcasting, let's go to the tape.***This is not a story about rap music -- although rappers' regular appropriation and clearance of samples have set important legal precedents for musicians interested in using the cut-and-paste approach. It's a story about those who take sampling to its logical conclusion, using it not just to create a "hook" or catchy refrain but as the bulk of a composition.In this musical world, it's all samples.The style is sometimes called "plunderphonic" -- an allusion to the Canadian sampler-composer John Oswald's 1989 recording of the same name. Along with Oswald and the Evolution Control Committee, the genre's most celebrated practitioners are Bay Area collective Negativland and the international trio the Tape-beatles.Of these four groups, only one has escaped legal entanglements."We've been fortunate enough never to have been sued," says the Tape-beatles' Lloyd Dunn. "But the fact is, in order to make the work we want to make, we have to sort of ignore the possibility that we can be sued."It's our feeling that what we're doing is ethically valid, in spite of the fact that it uses work that someone else has made. Because what we're doing is creating a new context for small pieces of that work. We're not stealing somebody else's work wholesale. We're actually just using small pieces of it without permission in new contexts that create paradoxically new, original works."Dunn, who lives in Iowa, collaborates with his bandmates -- John Heck, who lives in Prague, and Ralph Johnson, who lives in San Leandro and works at Mills College -- over the Internet, by snail-mail and, on rare occasions, in person.To hear the Tape-beatles is to wander into an aural salvage yard of cultural detritus from the past 50 years (similar in spirit, if not in execution, to the Beatles' "Revolution #9"). Voices may speak in complete sentences, but the content is made up largely of material spliced from a hodgepodge of sources: an educational filmstrip from the '60s, a radio commercial from the '80s, an obscure pop song from the '70s.Randomly placed, such snippets can sound like a short attention-span scan across the radio dial. But in the hands of a skilled sampler, the effect can range from surreal to silly to satirical to sardonic.On the Tape-beatles latest album, Good Times, phonics of all persuasions are plundered to create a sound collage that deflates America's euphoria over its current economic prosperity. (Download-able tracks by the Tape-beatles and those of many artists discussed in this story can be found on the Web sites listed below.)On the song "The Human Machine," for instance, the trio drop in segments from a vocational guidance record that proffers advice to aspiring wage slaves. Mixing in percussion found on a microphone-maker's demo CD, the two competing sources create a relief that supersedes the sum of its parts."The combination creates a sense of regimentation," Dunn says. "It creates a sense of enforcement, of a rigid structure that these people are forced to build their lives around to have employment. So it ends up being a funny and entertaining piece because of the overbearing quality of the drumbeats and also the almost humble way that people are presenting their own lives."The follow-up track, "Byways of Ghostland," mixes a hilarious hyperactive tonic of chase and nab 'em scenes that could be found in any generic action movie. Each unintelligible exclamation that the over-actors scream is delivered with such inexplicable intensity and melodramatic vim that, divorced of any context, the two-minute opus provides a searing, succinct critique of the Hollywood hit factory. And, unlike treatises one might find in Film Comment or Art Forum, the only discernible text in "Byways" is, "You're gonna get us all killed!"***The argument plunderphonic artists most frequently advance in defense of their right to create and distribute audio collage is that the techniques they employ are as old as art. Only the technology is new.In the 15th and 16th centuries the quodlibet was a widely practiced form in European music that ripped off other songs, often to comic effect. The most famous example of this musical borrowing is the last of Bach's "Goldberg Variations," which splices together two popular melodies of his era, "Long Have I Been Away from Thee" and "Cabbage and Turnips."Of course, composers and performers across the ages have engaged in quodlibetry of some form, from Mozart and Charles Ives importing popular folk melodies into their symphonies to innumerable jazz players lifting solos, licks, even entire songs to create new material.As John Oswald wrote in his influential 1985 plunderphonic manifesto, Audio Piracy as a Compositional Prerogative: "Ives composed in an era in which much of music existed in a public domain. Public domain is now legally defined, although it maintains a distance from the present which varies from country to country. In order to follow Ives' model, we would be restricted to using the same oldies which in his time were current."Or, as Stravinsky put it, "a good composer does not imitate, he steals."The courts don't take such a lenient a view. The closest American legal code comes to allowing free and unfettered access to copyrighted materials -- including both musical compositions and recordings -- is described in Section 107 of the U.S. Copyright Act.The law states that "fair use" of copyrighted materials is allowed in the cases of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research."A 1994 Supreme Court case between Roy Orbison's music publishing company and rap group 2 Live Crew broadened the fair use category to include parody as well. The Miami rappers had spoofed Orbison's chestnut, "Oh, Pretty Woman" on their album As Clean/Nasty As They Wanna Be and Orbison's publisher cried copyright infringement. In the court's unanimous decision denying Acuff-Rose Music's copyright claim, Justice David Souter wrote, "The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line . . . Accordingly, parody, like any other use, has to work its way through the relevant factors and be judged case by case, in light of the ends of the copyright law."The U.S. Constitution's brief mention of copyright authorizes Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."Copyright expert William W. Fisher III of Harvard Law School says the battle over fair use long has been waged between those "interested in strengthening intellectual property protection on the one hand, and on the other hand, people who have an artistic or consumer interest in making use of copyrighted work."The former category constitutes some of the most powerful corporations and commercial interests in America, including AOL/Time Warner, Disney/Cap Cities, CBS/Westinghouse, GE/NBC, and other corporate conglomerates. However, in a time of great media consolidation, artists and consumers are lucky to find nearly as much power and influence fighting on their behalf.In a 1993 decision, Judge Alex Kozinski of the Ninth Circuit U.S. Court of Appeals noted that a loss of balance between the two extremes results in a loss for society."Overprotecting intellectual property is as harmful as underprotecting it," he wrote in his decision. "Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new."Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture."***Now into this fog of fair use controversy comes the digital sampler, wielded by plunderphonic artists as well as their less sampler-centered compatriots in rap and pop music.As Harvard Law School's Fisher notes, "[Sampling] is straightforward, verbatim copying. On the other hand, it's for transformative uses and it's typically not very much of the copyrighted material. So things get sort of twisted because of the peculiarities of the copying, and courts struggle over the legitimacy of digital sampling."And the courts have left plenty of room for questions and doubts.For all its use in popular music today, only two major cases examining the use of sampling have made it to trial. It is on these two cases alone that lawyers can base their understanding of the legalities of sampling.A New York district court's opinion in one case (Grand Upright Music, Ltd. v. Warner Bros. Records) borrowed the Seventh Commandment -- "thou shalt not steal" -- in rendering its decision against sampler and rapper Biz Markie. The other case (Jarvis v. A&M Records) generated an opinion stating, "there can be no more brazen stealing of music than digital sampling."Not surprisingly, most entertainment lawyers dealing with sampling today say fair use rarely enters into the legal picture."When I'm advising clients in the real world, we don't start talking about fair use, we start talking about clearing it and avoiding a lawsuit," says Michael Ashburne, an Oakland lawyer and member of the California Lawyers for the Arts -- a coalition that provided legal assistance to Negativland during the band's copyright battle with U2 and Casey Kasem. "The expense of litigation is so enormous these days that from a practical standpoint, people who are doing this for profit don't want to take the chance to litigate this down the road."Instead, Ashburne advises clients -- who include the Bay Area rap acts Souls of Mischief and Del the Funkee Homosapien -- that if a sample can be detected, a sample should be cleared. For example, if an artist places one detectable sample on a CD, she typically would pay out $3,000 to $8,000 for every 100,000 CDs sold -- with the steepness of the rates determined by the centrality of the sample to the song's structure."This means that if you've got a sample on every track on a record, you could easily be paying out eighty thousand bucks just to release it," Ashburne says.What does this mean for underground sampling artists who cannot afford the costs of lawyers and clearance fees? Should they just hang it up and make music without their cultural and musical quotations?One San Francisco act, the Marginal Prophets, spelled the dilemma out in the liner notes to their recent album Twist the Nob."We see ourselves as musicians making collages with sound," the Prophets write. "We would like nothing more than to be able to pay for the samples we use. We don't want to see anyone getting ripped off. However, when we looked into sample clearing we found out that the cost was way beyond what we could afford. The only people with the kind of money needed to clear samples legally are the record labels."The Prophets go on to ask for the industry's indulgence in allowing them to get their foot in the entertainment door before requesting royalties on samples.If the band makes it, they say, they'll pony up for the samples. If not -- "then all that's happened is that three dudes in San Francisco released some CDs on their own, with uncleared samples, and went nowhere."Bay Area electronic artists Negativland are standing firm behind their belief in the right to sample. Their 1995 book, Fair Use: The Story of the Letter U and the Numeral 2, details the legal quagmire created by a single of theirs that used samples from a U2 song and an outtake from a Casey Kasem "American Top 40" broadcast."Our position is fair use for collage," says Negativland's Don Joyce. "We do collage. Basically, there's nothing wrong with it. It's not a threat. It's not in competition with the sources used. It's such a natural and healthy human instinct that has been stifled by the notion that all art is private property."Joyce blames the business side of art for quashing creativity."[Art] has always wanted to evolve by stealing," he says. "It's been going on forever in the history of art, and now you can't do it."Judge Kozinski finds current trends in copyright law are having a similar chilling effect."Intellectual property rights aren't free, they're imposed at the expense of future creators and of the public at large," he wrote in a recent opinion. "Where would we be if Charles Lindbergh had an exclusive right in the concept of a heroic solo aviator? If Arthur Conan Doyle had gotten a copyright in the idea of the detective story, or if Albert Einstein had patented the theory of relativity? If every author and celebrity had been given the right to keep people from mocking them or their work?"Surely, this would have made the world poorer, not richer, culturally as well as economically."Poorer is exactly where the Evolution Control Committee finds itself.Had the band requested permission to spoof CBS News, its satire would never have left the planning phase. But without permission Evolution Control left itself open to a sales-stifling legal threat from CBS.Evolution Control's Gunderson countered the threatening e-mail from CBS with his own missive."The copyright law itself allows for people to make fair use of copyrighted materials for purposes of parody," he wrote. "'Rocked By Rape' is nothing if not parody. The suggestion that a listener might mistakenly presume that CBS would have endorsed such a recording as you suggest is simply ludicrous."The title itself is not the result of some clever editing trick on our part, but was actually spoken by Rather during one broadcast. While the context of that phrase and others we included in our piece may differ from the original, we feel that these 'shock phrases' are often all that remain in a viewer's mind after each broadcast. Our critique -- our parody -- makes this point plainly."Ideally -- at least in a situation where his legal bills would be covered -- Gunderson would like the opportunity to defend Evolution Control's work."I wish that we had our chance to prove our rights in court, because I firmly believe this is a legal release," Gunderson says. "I believe this is a parody and it would be allowable as such."Steev Hise is a San Francisco-based sampler artist who contributed to a 1998 compilation sampling a leading pop-music sampler in his own right, Beck. (The CD, Deconstructing Beck, generated a threatening letter to its label, Illegal Art. Beck's record label, DGC, never pursued legal action. There are unconfirmed reports that Beck himself got wind of the controversy and called off DGC's legal hounds.) Hise fears that given the current legal and economic climate the protection afforded by fair use will only dwindle in the future."In the name of protecting artists, these middlemen, these corporations, have set up a system where they can profit from other people doing the creative work," he says. "It's kind of paradoxical. I see it getting worse and worse, where copyright gets more and more stringent."Plunderphonic pioneer Oswald anticipated the dilemmas faced by Negativland, Hise, Evolution Control, the Tape-beatles and their colleagues. In his 1985 essay, he reduced the sampling problem to a single query."So the equipment is available, and everybody's doing it, blatantly or otherwise," he wrote. "Melodic invention is nothing to lose sleep over. There's a certain amount of legal leeway for imitation. Now can we, like Charles Ives, borrow merrily and blatantly from all the music in the air?"

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