Critical Studies in Mass Communication

VOLUME1~)~N~U~M=B=ER~1 ______M~A~R~C~H __ 19~9~8

The Politics of Authenticity in Postmodern Rock Culture: The Case of Negativland and The Letter 'U' and the Numeral '2'

Andrew Herman and John M. Sloop

0-Based on recent concerns with the notion of authenticity and effective politics in contemporary popular culture and scholarship on culture, this essay uses a case study ofthe legal and popular controversy surrounding the Negativland recording, "The Letter 'lj' and the Number '2 '. " The analysis points to the organic development ofalternative logics in the changing landscape ofpopular culture. Moreover, we point to the relationship between the ''pastiche'' style ofthe Negativland recording as a metaphor for authenticity and justice in postmodern rock culture.

I have often recalled with fondness and just getting along without such a place, of admiration what Kant has said about ethics conceding that things are just "dec en­ and the stars. Nothing so filled Kant with tered," "disseminated," "disastered." Still, awe than the starry skies above and the I would say, obligation happens, the obliga­ moral law within, the stars being for Kant tion of me to you and of both of us to (and Aristotle too) obedient to the highest others. It is all around us, on every side, and most surpassing lawfulness, and Law constantly tugging at our sleeves, calling being for Kant a kind of star to guide us on us for a response. In the midst of a through the swirl of appearances .... To disaster. suffer a disaster is to lose one's star (dis­ -John Caputo (1993, p. 6) astrum), to be cut loose from one's guiding or lucky light. Laying claim to neither the Keep Reaching for the Stars! logos nor the nomos of the stars, I suffer a -Casey Kasem dtsastronomic, disastrolog1cal, deconstruc­ Our U2 was a spy plane full of secrets tive setback.... It is not a question of intruding into the self-righteous and com­ knowing what to put in their place, but of placent image-world of the polite pop of the stars. We did it as an example of some­ thing not being what it seems to be. We did Andrew Herman is assistant proftssor o[sociol­ it because we are all subject to too much ogy and cultural studies at Drake University. media image mongering. We did it did it John M Sloop is assistant proftssor o[communi­ because tricksters and jesters are the last cation studies at Vanderbilt University. best hope against the corporate music bu-

Critical Studies in Mass Communication Copyright 1~)98, NCA 'j ( (9) --' 0 1'( )LlTICS OF ,\1· HI F,NTTClT"'r reaucracies that havp all blll killed the cal reproduction to Jean Baudrillard\ most interesting thing in popular IIlusic­ (1983) more recent celebration of simn grassroots inspiration. vVe did it for laughs. lation and cultures of excess, "authen We did it so vou could read this. - ticity" and the possibility of a politics -Negativland. "Negativland's First Press of meaning have been intimatelv tied Release. November Ill, 1'l~II" (I!)'I:), p. ~.+) together. More recently, Grossberg has placed his focus on "authenticitv" The Stars Down to Earth: within the fandom of (post)mod':rn Postmodemity, Authenticity rock culture. As he (1992, I 99:i) notes, and the 'Ground' ofJudgment the so-called "ideology of authentic ity" has provided the basis for aesthetic and political judgment in rock culture T has become almost axiomatic in since its emergence in the 19!1Os.T'his discussions of contemporary post I ideology worked impliCitly and expiic (-structural, -Marxist) theory to be­ itly to produce a tapas of alteritv and moan the inability of the academic difference, a map of intersubjective and political left to make judgments tied to collective identity for postwar youth affirmative social change. Dubbed the "crisis of authority" by Lawrence culture. The ideology of aUlhenticit\ Grossberg (1992), the crisis is said to be has provided the ground for a practice a condition in which those who make of judgment through which musicians, "post" assumptions expend their ener­ fans and critics were able to distinguish gies refuting the Viability of any essen­ between "authentic rock," which was tial ground (personal or Archimidean) transgressive and meaningful, and "in­ upon which to make judgments. The authentic rock" (or "pop"), which was academic and political right, on the co-opted and superficial. Inauthentic other hand, has no need for such persis­ rock was mere commercial entertain­ tent self-reflection, and hence its views ment; authentic rock was "something gain currency as it posits a stable space more-an excess by virtue of which for authority in a fragmenting world. rock can become a significant and pow­ As Elspeth Probyn (199:1, p. 58) notes, erful investment" of pleasure and "As the left continues to attack itself meaning in everyday life (1992, p. 2021. from within, a growing public dis­ To paraphrase Grossberg, authentic course of 'new traditionalism' actively rock made a difference in everyday life articulates care and community to the precisely because it enabled members New Right. ... Transparent as it may of the rock community to evoke and seem ... the right's reclaiming 'funda­ conjure a place of difference hom main­ mental' values constitutes an appealing stream culture, a culture which made platform. " no difference to the alienation, terrof One avenue into a discussion of the and boredom of postwar youth. demise of "author-ity" would certainly Of course, the imaginary boundary be the theoretical and critical line that dividing and distinguishing authentic has traced ou t the links between and inauthentic has always been fluid changes in media and reproduction to and mobile; today's transgressive band, transitions in authenticity and aura. genre, style, label or subculture is tu­ From Walter Benjamin's (19:16/1968) morrow", co-opted "sell-out." Indeed, concerns with the undermining of aura as Grossberg points out, this instability and authenticity in the age of mechani- or specific definitions of authenticity 3

CSMC HERMAN AND SLOOP has been central to rock culture's vital­ an apparently homogenous mainstream. It ity as a source of meaningful difference marks the collapse, or at least the rel­ in popular culture and everyday life: evance, of the difference between the au­ "[rock] must move from one center to thentic and inauthentic. It siguals the ab­ another, transforming that which has sence of alternative spaces; we are all in the same space, co-opted (1992, pp. 225- been authentic into the inauthentic, in 227). order to constantly project its claim to authenticity" (1992, p. 209). However, In other words, since in the postrnod­ Grossberg and others (cf. Bloomfield, ern we are always already co-opted, 1993;Jones, 1993) argue this constant rock as a cultural practice can no longer re-territorializing of the topos of authen­ be excessive or the site or scene of ticity within rock culture has been prob­ resistant judgment in any efficacious lematized by the postrnodern medias­ way apart from the transitory pleasures cape within which the distinction of the moment a pose is struck. Or, to between a surface of representational use Grossberg's words, with the post­ images and the "depth" of reality has modern collapse of authenticity, collapsed. For Grossberg, the advent Rock can only produce an endless mobil­ of postrnodernity spells the end of the ity, spaces without places, a paradoxical ideology of authenticity as a resource strategy by which people live an impos­ for resistant judgments within rock cul­ sible relation to their own lives. Rock will, ture, because differences between forms by placing you within its own spaces, free of rock as cultural practice are now you from the moment, but it will not prom­ understood and embraced as nothing ise any alternative spaces" (238). more than differences in artifice, style The question posed, then, and the and pose. one this paper investigates, is that of Indeed, according to Grossberg, the authenticity and judgment. If, as Gross­ dominant form of cultural practice and berg claims, the lOgic of authenticity judgment within postmodernity is what has given way to a logic of authentic he terms a "logic of authentic inauthen­ inauthenticity, on what basis are judg­ ticity." As Grossberg explains this logic, ments made in everyday life, if they authentic in authenticity is are at all? Has authenticity as a concept indifferent to difference. It does not deny been evacuated or its meaning simply differences, it merely assumes that since transformed? What is the impact of there are no grounds for distinguishing potential transformations? In order to between the relative claims of alternatives, investigate these questions, we offer a one cannot read beyond the fact of invest­ material study of a struggle over the ment. To appropriate, enjoy or invest in a concept of "authenticity" as it arose in particular style or set of images no longer the discourse surrounding the lawsuit necessarily implies any faith that such in­ that barred the release and manufac­ vests will make a siguificant (even affec­ ture of "sound artists" Negativland's tive) difference .... If every identity is single, "The Letter and the Nu­ equally fake, a pose taken, then authentic 'u' inauthenticity celebrates the possibility of meral '2' ," poses without denying that is all they One of our guiding methodological are . ... Authentic inauthenticity, then, un­ assumptions is that to understand "au­ dermines the very possibility of a privi­ thenticity" and judgments made on the leged marginality which can separate itself basis of authenticity, especially resis­ from and measure itself (favorably) against tant judgments, one must turn away POLITICS OF "~I'THE"JnClii \1,\ !{( '11 1'1'1;-:

from treatises about judgment and con­ with U2 band members. a vocal and struct a theory of authenticity out of its sound parody of the U2 single, studio material use. In other words, one must outtakes from Casey Kasem's "Ameri create a materialist "conception of au· can Top 40" (many of them discussing thenticity."i In Against Ethics,John Ca­ U2), and various other sounds in order puto (1993) argues that in spite of our to comment on the popularity of U~ constant writing and rewriting of fhe and the rock music industry in general. obituary for judgment in contempo­ The recording was then released by rary culture, "obligation happens" (6). SST records in a sleeve fhat promi­ As he provocatively suggests in the nently featured the letters "U~" and a above epigram, the postmodern entails picture of the famous American spy the loss of transcendent and absolute plane of the same name. This artwork basis for judgment as fhe shining stars was blamed for leading some U2 fans oflaw and satellites oflogos have disap­ to purchase the single when they incor· peared from the heavens. Yet in spite rectly assumed that it was a single by of this "disaster," "obligation happens, U2. Only weeks later, both Island Re the obligation of me to you and both of cords and Warner-Chappell Music us to others. It is all around us, on (U2's label and music publisher) filed every side, constantly tugb>ing at our suit against both N egativland and SST sleeves, calling on us for a response" records demanding that SST stop pro (1993, p. 6). And as obligation requires ducing the single and that aU existing a sense of authenticity, so too does copies of the recording be turned over authenticity happen" It is this ubiquity to Island. When the case was settled, of obligation, authenticity, and judg­ SST and Negativland were compelled ment which constitutes the seams of to pay more than $90,O()O in legal fees the deontological materiality of every­ and damages and attempt to remove day life. all copies of the single from circulatIon. Again, we will utilize the legal and Since Island/Warner Chappell first public case that emerged as a result of filed suit in November 1991, the case the release of Negativland's single "The has acquired a good deal of notoriety Letter U and the Numeral 2" as a as an interesting example of copyright location for the study of the materiality and trademark infringement 111 the age of authenticity. Rather than producing of sampling and digital reproduction.! traditional "music" recordings, Nega­ Most useful to our interests1 however, tivland takes samples of various sounds is the fact that the case generated a from the media landscape and mixes great deal of discourse by fans and fhem together along with their own litigants. With access to the World voices and sounds to produce what Wide v,r eb, a virtual communitv \vas could best be described as parodic col­ created around the case that allowed lages of various spectacles of contempo­ for the distribution of numerous legal rary culture. In the case of the single documents, the single itself, and numer­ that initiated the discussion which sur­ ous spaces for fan discussions of the rounded tbis case, "The Letter 'li' and case and) consequently, of I-he notion the Numeral '2'," Negativland pulled of authenticity. together samples of the U2 single "I We utilize the case of the Negaliv, Still Haven't Found What I'm Looking land single and the lawsuit and conver­ For," small quotations of interviews sations that it spurred to investigate a 5

CSMC HERMAN AND SLOOP material discussion of authenticity and and guitar-that mix again. And these ritu­ judgment. Ultimately, we will argue als, like smashing instruments on stage, that the case illustrates the construc­ they ring so hollow now, they feel so dated. tion and deployment of a transformed That's why I stopped thinking of U2 as a notion of authenticity fitting the needs rock band because what that's become I of a postrnodem epistemology. While can no longer relate to. We feel more Negativland initially attempted to de­ affinity with hip-hop groups; they're seiz­ ing the technology and bending it to their fend itself using the logic of romantic own use. That's one of things we are most authenticity (the artist as free-standing excited about Zoo TV: Music is mutating author of his/her own ideas, created into audio-visual forms, and as the ground solely by him or her), this logic was gives way underneath us we're excited, we certain to fail as it could-and was­ want to go sliding, sliding down the surface effectively deployed against the band's of things. own practices, given that their perfor­ William Gibson [author of Neuromancer]: mances are reassemblages of frag­ So, do you have any favorite contradic­ mented discourses. Hence, Negativ­ tions? land's ultimate defense came through a Bono: Art and commerce.... (Gibson, construction of a lOgic of authenticity 1994, p. (6) as free appropriation. "Authenticity" continued to function as a key term Artists have always approached the entire world around them as both an inspiration (albeit transformed) despite Grossberg's to act and as raw material to mold and (and others') obituary of the concept. remold. Other art is just more raw material We will begin below by engaging in to us and to many, many others we could a close reading of the documents per­ point to. When it comes to cultural influ­ taining to the N egativland case in or­ ences, ownership is the point of fools .... der to illustrate the employment of the We claim the right to create with mirrors. Romantic notion of authenticity. Sec­ This is our working philosophy. (Negativ­ ond, after reviewing the failure of their land, 1995, p. 23). use of the Romantic notion, we will As we have noted, the ideology of focus on the construction of an authen­ authenticity, and its concomitant no­ ticity offree appropriation and the im­ tion plications this logic calls for that differ of authorship, has long been a from those of Grossberg's authentic vexed issue within popular music stud­ inauthenticity. Finally, we end with a ies as well as within rock culture itself. discussion of how these different logics As Bloomfield (1993) and Jones (1993) can function in contemporary culture. have explored in some detail, this ide­ ology has its origins in eighteenth and nineteenth century Romanticism along Even Better than Real Thing: with the emergence of the modem, The Acrobatics of bourgeois form of the song.3 Accord­ Authenticity and ing to Bloomfield (1993, p. 17), the Appropriation Romantic ideology of authenticity con­ sists of several elements which serve to Bono: (reading from magazine ad) "When was the last time you saw anything so construct a profound intersubjective authentic look so good." Look at the state communion between author and audi­ of white rock n' roll: It's never been so ence. First, it foregrounds the creativity retrogressive. What is described as "alter­ of the artist in terms of being able to native" is no more than raw bass, drums powerfully and sincerely articulate and P( )IJTf(:S ()F A! THE~TT('ITl evoke the inner subjective experience too, to use .lones's words, does the of the individual; second, this experi· "popular music industry clings "bstJ­ ence is put into the form of the song, nately to the author" (199,1, p. SO:.' [n which, third, is disseminated through the Negativland/U2 case, these contra performance, and, fourth, resonates dictions exploded, and in this explo­ with and enhances the emotional expe­ sion, a gap was found between the rience of the listener. Thus, the Roman­ romantic uotion of authenticity and tic ideology of authenticity entails an the works produced via new media affective and symbolic economy of pro technologies. Perhaps what is most fas­ duction, consumption, and exchange cinating about the case is that it demon­ within which artist and audience are strates that there is not a single, unitary sutured in an imaginary locus of com­ ideology of authenticity operative III mon identitv. rock culture. Rather, there is a hetero­ Of cours~, as Atalli (1985) has ar geneous ideology with multiple mean­ gued, this ideology effaces two central ings and contradictory connotations "f social facts that have shaped the devel­ "authenticity," with dominant and opment of popular music since the Ro­ transgressive articulations, which en­ mantic era: the displacement of live tail different material and symbolic performance by audio recording and economies of musical producti~m, con­ the commodification of music by the sumption and exchange. What we see capitalist culture industry. As Jones in the case is, so to speak, an acrobatics (1993) argues, in the age of audio repro­ of authenticity as the parties rhetOli­ duction, authenticity is not grounded cally deploy and combine different no· in what one writes or performs, but tions of authenticity in order to con­ how one sounds. Moreover, the pro­ struct a ground of judgment upon cess of producing, recording, and dis­ which to stand and act. Below, then, tributing sounds is highly complex and we will examine the dominant le!!;al institutionalized, thus further displac­ discourse of authenticity as embodied ing the Romantic author as the origin in the initial suit filed by Island Re and creator of musical experience. Fi­ cords and Warner/Chappell Music nally, with the development of a music against SST records and Negativland, industry and its constituent legal dis­ showing here the way that authenticity courses of copyright and trademark, is constructed in as an element of the not only have proprietary rights of own­ commodity. Second, we will illustrate ership over creative work been trans· the way in which a Romantic notion of ferred from the artist to record and ideology is rehearsed and then re publishing companies, but the very im­ jected by Negativland as its arguments age itself of the artist as authentic au­ are shown to work as easily against as thor becomes the property of the indus­ in support of, their case. Next, we will try. investigate Negativland's articulation of Yet in spite of these contradictions, a logic of authentic appropriation. the ideology of authenticity and Ro­ Rather than rejecting authenticity ft)r mantic notions of authorship has re­ an authentic inauthenticity, the legal mained fairly hegemonic within rock case, because it centers on notions of culture. Not only do fans invoke their ownership, forces the nlaintenance of understandings of authenticity as a dis­ some sense of artistic ownership and criminating axis of judgment, but so authenticity. The lo,~c that emerges is 7

CSMC HERMAN AND SLOOP one fitting the postmodern medias­ stand at the time was how inextricably cape, holding implications for the log­ linked the dominant affective and sym­ ics of postmodernity. bolic economies of authenticity are with production and circulation of cultural commodities. In other words, N egativ­ Desire, Anxiety, and land was seemingly naive to the fact "Goodwill": The Authenticity that, to the culture industry, authentic­ of the Commodity ity is more than simply affect and mean­ ing; it is a form of private property. When N egativland recorded The Let­ It is of course the function of trade­ ter U and the Numeral 2, they had every mark and copyright law to discursively intention of subverting the symbolic construct and institutionally enforce economy of authenticity so dear to particular notions of authenticity as mainstream pop music culture."' The titular and substantive subject of their property right. As Jones insightfully parody was a band whose commercial points out, this function is grounded in and popular image signified artistic in­ the very etymological roots of the word tegrity, emotional passion, and politi­ "property" : cal commitment. Indeed, it was this Derived the Latin proprius, meaning "one's reputed authenticity of the band which own," the word property was a doublet of was highlighted in Island Records' pro­ propriety in More's Utopia. In current us­ motional campaign for the album, The age the former is used make reference to Joshua Tree, in which U2 was given the ownership, the latter refers to a standard of moniker "The Conscience of Rock and behavior, and Copyright law intertwines Roll." Moreover, their very choice of a the two, harkening back to the Latin pro­ U2 song to satirize and deconstruct prius and its derivative proprietas, meaning was an indicator of their subversive proper signification with words. What is designs. Not only was "I Still Haven't negotiated when one enters into a licens­ ing agreement based on copyright is, in Found What I'm Looking For" U2's essence, proper signification, as deter­ first American Top 40 hit, it was also mined by the copyright holder (1992, p. an archetypal example of the invoca­ 118) tion of the ineffable ground of soulful rock and roll sincerity and authentic­ As Gaines (1991) and Coombe (1993) ity, the gospel-blues song.6 Finally, as explore in some detail, what is true of they were to later admit, their choice of copyright law in this regard is also true cover design (a large "U2" superim­ of trademark law. Both operate so as to posed over an image of the U2 spy construct a proprietary right of the plane) was meant disrupt the connota­ owner of a cultural commodity's copy­ tion of the band's name as a signifier of right and trademark over its potential authenticity. When considered as a meaning and interpretation. Proper sig­ whole, Negativland was to argue that nification of the symbolic value of the "Our U2 was a spy plane full of secrets commodity, in turn, forms the basis for intruding into the self-righteous and what the legal discourse of copyright complacent image-world of the polite and trademark term the "entitlement" pop of the stars. We did it as an ex­ of the owner to fully "exploit" the ample of something not being what it exchange value of the commodity in seems to be" (Negativland, 1995, p. the market place by ensuring its proper 25). Yet what the band did not nnder- use (Gaines, 1991, p. 39). For the POLITICS OF At ;THEKTlCIT\ economy of commodity production formances by the renowned musical group and consumption to "work" (i.e., to known as '''U:2,'' and ... have the exdusivt~ produce a profit for the owner), the rights to publish and administer the copy­ symbolic economy of affect and ideol rights in U2's musical compositions. Plail1- ogy must be legally structured so as to tiff~ are exclusively entitled to the use Lite constrain the surplus meaning of poten­ band's wel1-know~ name and mark "l.]/" in connection with the explOitation of these tial polysemy and prevent the corrup­ rights (found in Negativland, 1'l'l5, p ..",). tion of the signification value of the product. Any unauthorized appropria­ The suit argues that the N egativland tion and alternative signification must single, both the form of its packaging be strictly controlled, if not prohibited and its content, represents an infi'inge­ (Coombe, 1993, p. 415). Thus, in Bata­ men! of the plaintiffs' entitlement to ilJean terms, the discourse of copyright exploit the sound and image of U:Z and trademark law constitutes a re­ under prevailing trademark and copy­ stricted economy of signification (d. Plot­ right law. Moreover, because the Nega­ niksky, 1993). tivland single had been put into circula­ It was precisely this restricted tion just in advance of the "widely economy of signification, with its privi anticipated new album by U:Z" (Ach.­ leged meanings of authenticity, into tung Baby), it was "nothing less than a which Negativland's "U2 spy plane consumer fraud, and a blatantly unlaw­ full of secrets" intruded and brought ful attempt to usurp the anticipated forth the wrath of the real owners of profits and goodwill to which the plain U2's sound and image, Island Records tiffs are entitled from the exploitation and Warner-Chappell Music. Less than of recordings and musical composi­ three weeks after the single was re­ tions by U:Z" (f

CSMC HERMAN AND SLOOP and trustee of both. "Goodwill," as it sented an "egregious" consumer fraud were, operates as the coin of the realm in both form and content. It's packag­ of corporate sovereignty over the re­ ing and labeling would lead "unwitting stricted symbolic economy of the cul­ consumers" into being "duped into pur­ tural commodity. chasing that record in the mistaken The better part of the brief is de­ belief that it is the new U2 record" voted to a historical narrative chroni­ (found in Negativland, 199.5, p. 11). cling the successful commercial career Even more "outrageous" than this of U2, the longstanding relationship of trademark violation, the suit contended, ownership of the plaintiffs of the band's was the content of the single itself. name, sound, and image, and the con­ Interestingly, the weight of the briefs comitant entitlement of the former to claims to copyright infringement rested exploit the latter. This history of the not so much upon unauthorized sam­ band's commercial relationship with pling of the original song, but upon the Island and Warner-Chapell focnses es­ satirizing context into which the sam­ pecially on the "enormous artistic and ple was placed. In this regard, the suit commercial success" of TheJoshua Tree is worth quoting in detail: and the Grammy Award-winning sta­ [The single] is replete with expletives, tus of the hit single form the album, "I curses, and scatolOgical language which Still Haven't Found What I'm Looking many consumers will likely find offensive, For." This history of the proprietary and which undoubtedly anger and upset right of the plaintiffs over the success of parents of youngsters who purchase the the band in the past sets the stage for "U2 Negativland" record. It must be em­ the claims in the present and the fu­ phasized that U2 has cultivated a clean cut ture, which center on the "goodwill" image, and its recordings never include and desire of the consumer. Island Re­ such language ... The band's image will be cords, the suit explained, was about to tarnished, and the name and mark "U2" release the new U2 record (Achtung and the goodwill associated with it will be Baby) and "given U2's enormous popu­ substantially harmed as a result of the de­ fendant's deception which will lead con­ larity, it is inescapable that U2's fans sumers to purchase what they believe to be are anxiously awaiting the day when a U2 album, only to find a recording con­ they will find U2's new album in re­ taining such lyrics ... [and] will lead them cord stores" (found in Negativland, to conclude and that U2 has made a poor 199.5, p. 1O-·U). quality and offensive recording, thus fur­ It was into the situation of enhanced ther unlawfully tarnishing the band's repu­ consumer anxiety and desire for U2, a tation and image, and the enormously valu­ situation which only Island Records able "U2" name and mark. This would was entitled to exploit, that N egativ­ undoubtedly diminish future sales of U2 land and SST Records improperly en­ recordings, to the detriment of both U2 tered. On the basis of trademark and and Island Records (found in Negativland, 1995, p. 15). copyright infringement, the N egativ­ land single would have deceived U2 It is important to emphasize that the fans into thinking it is the "real thing," last sentence of the passage was the frustrated their desire and corrupt their only place in the entire brief where the goodwill, and therefore usurped the band was described as a party that plaintitrs entitlement to their profits. would be injured by the alleged trade­ According to the suit, the single repre- mark and copyright infringements. Any iil

POUTICS OF At THENTICIT)

financial damage that the band might able: to preserve the integrity and all­ suffer as a result of the Negativland thenticity of the commodity, to single existing in the world was com­ preserve the "goodwiHH of consurIlcrs, pletely subordinate to the "irreparable and to maintain corporate sovereignty harm" that would be done to Island over both, all forms and traces of this Records and Warner Chappell's entitle­ transgression must be expunged hom ment to exploit their product. Indeed, existence so that it is never heard again. within the legal discourse of copyright On November:i, 1991, based upon an and trademark, U:2 exists primarily as out-of-court settlement between Island/ a "name" and a "mark" that signifies a Warner-Chappell and Negativlandi particular "authentic" U:2 sound which SST, the U.S. District Court of Central is owned by the record and publishing California decreed that this relief company. 7 Accordingly, as the passage would, in fact, be the dominant legal makes exquisitely clear, the most "egre­ judgment. Negativland and SST were gious" violation of the single was its probibited from further productlOn and transgression of the restricted symbolic distribntion of the signal and were re economy of authenticity: it looks like quired to retrieve and destroy of all U2, but in a subversion of that band's copies of tbe single, its artwork, adver Singular aural identity, sounds like a tising, master recordings and dupli­ cacophonous riot of profane poly­ cates. In addition, the ownership of the semy. On the basis of this sonic subver­ copyrigbt of the single was assigned to sion and surplus of meaning, the brief Island/Warner-Chappell forever. conjures a scenario of semiotic seduc­ tion, consumer betrayal and commer­ cial disaster: "Unwitting" consumers, Postivland: The Failure of seeking satisfaction of their desires in Romantic Authenticity and the "real thing," would be deceived by the Tum to Free the form of the single, only to be of Appropriation fended by its content. Tbrown into a How was a resistant judgment, acro­ chaos of sonic inauthenticity, they batically balanced npon the unstable would find the integrity of the commod­ gTound of postmodern authenticity, cre­ ity to be corrupted and abandon it, ated in this case? To answer this ques­ taking their goodwill and money with tion, another one must be posed: is it them. Therefore, the brief argues, the possible to 'account' for snrplus mean­ very existence of the single repre­ ing, meaning that exceeds or trans­ sented a mortal threat to the potential gresses the boundaries of copyrighted success of the new U2 release or, as the authorial intent, in the symbolic narrative of the brief concludes with economy of cultural production? The metaphorical flourish, "Once the very question represents a conundrum 'horses' are out of the 'barn door,' the for the legal discourse of copyright and harm to Island Records will be done trademark and its notion of the authen­ and irreparable" (found in Negativ­ ticity of the commodity. As we have land, 1995, p. Hi). seen in the preceding section, in order The telos of the briefs argument, the for the owner of the cultural commod­ "requested relief' for copyright and ity to keep an account of the symbolic trademark infringement, is logically in­ and excbange value of the commodity, exorable and ideologically inescap- there can be no surplus of meaning. 11

CSMC HERMAN AND SLOOP

Such polysemie surplus is excessive of process of open-ended appropriation its restricted economy, and corrosive and gift-giving. From the perspective of the commodity's authenticity as of dominant law, as Corlett points out, sound and image. It therefore cannot such extravagance is akin to madness be accounted for. And what is exces­ as it entails the displacement of the sive of its system of accounting must be identity and meaning of the cultural either disciplined (that is, brought commodity. To return to Caputo's within it in the form of payments for metaphor with whieh we opened this use of the copyright or trademark), or paper, the politics of extravagance rep­ banished from the cultural field alto­ resents a disaster for the unitary logos of gether. dominant law. However, from the per­ In contrast, as we shall see, the resis­ spective of resistance, the disaster of tant judgment developed in this case, heterological extravagance entails a po­ both by Negativland and its fan base tentially endless profusion of mean­ (as witnessed in arguments on "alt.mu­ ings, pleasures and identities and repre­ sic.alternative" and on the Negativ­ sents the exuberance of cultural land homepage), refuses the necessity creativity, which is deemed as being and desire for accounting for symbolic the very ground of a distinctively post­ value altogether. Rather, it entails a modern authenticity itself. At the end principle of excessive semiotic extrava­ of the N egativland case is a new rhetori­ gance which subverts the very idea cal territory of cultural production and and practice of an accounting of sur­ circulation, a territory that might ex­ plus meaning. The heterological no­ travagantly be called "Positivland." tion of postmodern authenticity devel­ Before we proceed to an exploration oped by N egativland and its fan of how this politics of extravagance community, which is based upon a emerged, it is important to offer two strategic and tactical practice of cul­ caveats about what may be deemed an tural appropriation, embraces and cel­ insufficiency of our analysis in this sec­ ebrates a playful symbolic economy of tion. First, we offer a thematic analysis heterogeneity which renders meaning­ of the development of this judgment less an accounting for meaning. rather than a comprehensive history of William Corlett describes this sym­ the events in which this judgment was bolic economy without restrictions: "In situated. As such, we unfortunately a politics of extravagance, all lives hinge gloss over or ignore altogether what upon how silence is broken and main­ are interesting as well as entertaining tained. To live extravagantly is to give details about the twist and turns the gifts freely, to cultivate one's gifts in all case took. 8 Second, in our analysis here, directions. The word extravagance sig­ we focus exclUSively on statements and nifies the madness of losing oneself in texts produced by N egativland itself the practice of everyday life" (1989, p. rather than the fan base at large. Even 211). Accordingly, in distinct contrast so, we believe (as Negativland said to the restricted economy of copyright itself) that these texts are representa­ and trademark law where the point is tive of a like-minded community as to preserve sovereignty over meaning they are products of an extensive and as the entitlement to exploit, in the expansive dialogue between Negativ­ excessive economy of extravagance the land and that community. point is to dissolve sovereignty in the The argument over authenticity, and IL

1'( )L1TICS ()F ALTHENTJ( :1'1"\ the struggle with the Romantic notion, rights to keep their recording on Ihc was not one that came fully articulated market. Negativland released a press by Negativland. Instead, in the "publi­ statement asking for a discussion about cation n of various statements and com­ the varions possible ways in which ar­ muniques by the band (some in re­ tistic integrity and legal rights could be sponse to fans, some in response to configured. As the band noted, given legal ongoings), various notions of au­ the disparity in economic and legal thenticity were bantered about, coher­ power between themselves and Island ing into more specific ones. The entire Records, and given that it had already struggle took place, however. on the had been forced to "agree completely" grounds of challenging the legal judg­ to Island's demands, a iClI"llm in which ment that had been articulated under/ it was able to articulate its understand­ with the concept of "Fair Use." Fair ing of fair use was needed (Negativ­ use, of course, is a provision of the land, 1995, p. :2:2). Criticizing the legal United States Copyright Act of 1976 decision and Island's demands as ones § 107 that allows for the re-use of copy­ that linked together the marketplace righted material without prior consent and the legal decision in opposition to of the owner and without payment of artistic integrity, it noted, "Apparentlv, fees under any circumstances!) When Island's sole concern in this act of cen­ the case began, Negativland argued for sorship is their determination to con­ a liberal interpretation of the Fair Use trol the marketplace. as if the only provision on grounds very similar to reason to Inake records is to make those later given voice to by Justice monev ... [n this culture. the market David Souter in the Supreme Court's rules ~nd money is power. They own decision in the Campbell v. AcujJ-Rose the law, and no one who is still inter·· Music, Inc. [1994 WL 647:,H (U.S. Mar. ested in the supremacy of a vital and 7, 1994)1. also known as the '2 Live freewheeling art can afford not chal­ Crew/Pretty Woman case. 10 However, lenge this aspect of our decline" (Nega­ very much in the sense of Lyotard's tivland, 1995, p. '22). Negativland later (19RR) distinction between litigation re-articulated this critique of music as and the differend, even an attempt to commodity in its "Tenets of Free Ap­ argue for a more liberal reading of Fair propriation": "No one should be al~ Use ultimately worked to reify domi­ lowed to claim a private control over nant law by binding cultural practice the creative process itself. This struggle to the terms of the law. While we do is essentially one of art against busi ~ not wish to argue that existing legal ness. and ultimately about which one definitions of copyright and fair use must make way for the other" INegativ­ were immaterial to the case (or of no­ land, 1995, p. 251). tions of authenticity), especially in cases Up until this point, the argument of sampling and electronic means of that Negativland made worked well aural re/production (c.f. Sanjek, 19~J4), within the tradilional rock culture dif­ we are more interested here in the ferentiation between the "inauthentic ways in which Negativland's more ex­ mainstream"-positing music as COlll­ pansive use of the term "Fair Use" modity-and the authentic artistic mar­ acted in excess of existing legal mean­ gins of art for its own sake. The prob­ mgs. lem was that this Romantic notion of Fairly early on after first losing the authentic artistry worked as a point of CSMC HERMAN AND SLOOP contention between Negativland and Building this logic of free appropria­ SST Records owner Greg Ginn. The tion involved rethinking the history of story of their conflict helps explain in art and reinvestigating present situa­ part their eventual construction of a tions for artistic production. Negativ­ different meaning of "authenticity." land directly attacked the Romantic In Ginn's argument with Negativ­ notion of authorship as the sole crite­ land (it refused to split the costs of the rion of authenticity by arguing that legal case with him on a 50-50 basis), "the law must educate itself to the fact Ginn in effect publicly charged Nega­ that ever since monkey's saw or did, tivland with not fitting the traditional the entire history of art forms has been notion of "artists." Ginn accused N ega­ BASED ON THEFT" (Negativland, tivland of inauthenticity in that they 1995: 23). In one of the documents were not a "real band" as evidenced about the case most widely circulated by the fact that "they have never toured on the Web, "Crosley Bendix Dis­ and have only played occasional live cusses the Copyright Act," Negativ­ shows" (N egativland 1995, p. 51). In land expanded this argument by dis­ contrast to authentic expressions of cussing the development of different punk, Negativland was simply an "up­ forms of art: folk music, blues, jazz, per middle class hobby," "victims of a Dada, Surrealism and Pop Art have all media cocoon they frequently lam­ had "creative theft as their modus oper­ poon" (Negativland, 1995, p. 52). Ironi­ andi" (Negativland, n.d., p. 3). Going cally enough, then, when N egativland further, Negativland suggested that the relied on the Romantic notion of "au­ proliferation of examples of such theft thenticity," they were leaving them­ "all but forms a tradition of 'natural selves open for charges of "inauthentic­ law' " (Negativland, n.d., p. 3). Hence, ity" and hence of infringement. By by making the idea of free appropria­ using the traditional terms of litigation, tion appear as "natural law," the band they fell within dominant judgment. If coactively took what would be a dis­ their "art" was not an originary cre­ junctive definition of fair use (a differ­ ative act, they could not own it accord­ end) and posited it as the "correct" ing to existing law. definition. Hence, when the Romantic notion After advancing this notion of cre­ of authenticity was not a fitting re­ ative theft as a historical practice, Nega­ sponse to its own work, Negativland tivland suggested that the artistic pro­ found itself faced with a case in which cess should be seen as an "obvious and their understanding of their practice natural desire to embody or transform worked outside of existing notions of existing things as a form of dialog with creativity and ownership. In effect, the material environment" (Negativ­ Negativland offered an interpretation land 1995, p. 150). Hence, rather than of its act that worked as a differend to positing originality as inhering in the existing legal judgments. Negativland singular vision of the individual artist, argued for an authenticity "of copy­ it inheres in the process of transforma­ right infringement and sampling as a tion that occurs within the context of legitimate creative technique" (Negativ­ the shared culture of a community. land 1995, p. 48). As it was later to call The authenticity of appropriation, how­ it, this was an authenticity of "free ever it is manifested, is decentered and appropriation" rather than "fair use." dialogical. Far from being an act of II

POLITICS OF Al.'THENTIlTfl piracy or plagiarism, appropriation is a gues that the logic of hypertext (i.e .. gesture of respect and inspiration, links made hv interest rather than b, where one uses an original source as a rational hier~rchy) will become the springboard for one's own creativity, dominant logic of contemporary (post thus adding to the cultural conversa­ )modern culture. Such a claim be· tion,tl comes interesting to this case when Negativland also linked this new no­ traced through media theory and claims tion of authenticity and appropriation concerning the ownership of ideas. We to the postmodern landscape. As ar­ do not mean to collapse the entire case gued in "Fair Use" in almost Baudrillar­ of Negativland and its arguments into dian fashion, the dominant sphere of one determined by changes in media. everyday life has become reflective of What we are suggesting is that changes the contemporary media landscape. in media form and the accompanying Therefore, everything that circulates in changes in logics have led to an emerg­ the mediascape should be understood ing consciousness in which Negativ­ as always already suitable for appro­ land could "reasonably" posit their priation because it is already in the rather postmodern tactical practice and public domain. While existing copy­ articulate their sense of "free appropria­ right laws demand that one recognize tion." "the exclusive interests of private own­ If, as Walter Ong (19!l2) argues, ideas ers," the proliferation of new media of copyright and ownership come from technologies and electronic reproduc­ the logics tied to literacy and print, tion demands that people move from their transformation comes witb the being passive spectators to active par­ dominance of electronic media, espe­ ticipants in cultural production (Nega­ cially hypertextual forms of conscious­ tivland, 1995, p. 190). In other words, ness. It is important to note here that it is the law as written that is lagging the logic of any given change in media behind in the changing epistemology technology always contains elements brought on by the changing medias­ and residue of the consciousness that cape. preceded it. For example, the logic of literacy necessarily contains and is in­ fluenced by the influence of oral con­ Conclusions: Free sciousness. Similarly, electronic media Appropriation and Hypertext and hypertext do not lead to an era­ Consciousness sure of such concepts as anthenticity What is most important about the and ownership so much as their trans­ N egativland case is that as a starting formation. Stuart Moulthrop (1994), point for a theoretical discussion of relying on Deleuze and Gualtari's dis­ postmodern notions of judgment and cussion of striated vs. smooth episte­ authenticity, it is the basis of specula­ mologies (i.e., routine, speCification, tion for senses of ownership and au­ sequence and causality vs. transforma­ thenticity as culture and logics con­ tion, consensus, holism, random con-­ tinue to change through new media nections), provides an argument that technologies. In recent media and hy­ links to the arguments over authentic pertext theory (here, seeing the Inter­ ity that occur in this case. While many net as the example par excellence of ~ho study bypertext have argued that hypertext), George Landow (1992) ar- the new media technologies provide IS

CSMC HERMAN AND SLOOP an almost utopian space for smooth stable, such as Negativland's record­ thinking and smooth subjectivity, ing, the potentiality of linked frag­ Moulthrop suggests that the transition ments has been limited; the potential is never complete and therefore never links of sounds stabilized into one par­ a fully smooth space (1994, p. 316). On ticnlar configuration that remains the this point, he quotes Deleuze and Guat­ same through each listen. If this were tari (1987) in noting that smooth and hypertext, it wonld be the same as striated space "exist only in mixtnre: following someone else's links in the smooth space is constantly being trans­ same way repeatedly, the link order lated, transversed into a striated space; and content never changing. Hence, striated space is constantly being re­ because the links are solidified, Nega­ versed, retnrned to a smooth space" (p. tivland has grounds to argue for an 474). So while notions ofromantic au­ "authentic" and original "product," thenticity may crumble, especially something impossible in a purely when it comes to the pastiche-like cre­ smooth scenario. However, because ations of Negativland, they give way their "hypertextual" recording uses not to a sense of authentic inauthentic­ sounds "owned" by others, Negativ­ ity but instead to a different, perhaps land and its recordings are in a seem­ more fitting, notion of authenticity-the ing
y ambiguous space between authenticity of free appropriation. smoothness and striation, between "au­ Moulthrop's comments about the thenticity" and "inauthenticity." The mixing of smooth and striated space certainly find resonance when we com­ ambiguity is somewhat solved because pare electronic hypertext with pastiche­ the lOgic of capitalism requires the no­ like recordings. That is, because hyper­ tion of ownership, and hence, N egativ­ text is an unstable "practice" while land, and others, are forced to con­ N egativland's recordings become struct a notion of authenticity and somewhat "stabilized" in the very act ownership despite the theoretical argu­ of putting sounds on tape, the record­ ments that authenticity and originality ings act as much clearer examples of are no longer working concepts. In the the mix of smoothness and striation. Negativland case, we are provided with While the resources of hypertext (such a glimpse into not only cultural as the World Wide Web) may be con­ struggles as they are enacted in the stant (even this is not true as their arguments over authenticity, but also creation and transformation currently the ways that changes in media, in occur at a rapid pace), the potential conjunction with economic demands combination of links is limitless and and the weight of past discourses on hence, the manifestation of hypertext the present, are leading us to changing in nse is perpetnally unstable. On the notions of authenticity and original­ other hand, with something more ity. 0

Notes lThe notion of a "materialist conception of judgment" is a paraphrase of Michael McGee's (1982) "A Materialist's Conception of Rhetoric." In that essay, McGee, certainly influenced by Gramsci, took those who studied rhetoric to task for attempting to understand its meaning outside of the context of "rhetoric" in practice, in the material conditions of everyday life. 1(;

POLITICS OF AUTHENTICITY MARCH 1998

2The case has been widely written about in the music press, as well as discussed in articles in law and other academic journals. Indeed, the notoriety of the case has been in no small measure due to aggressive guerrilla publicity campaign waged by Negativland on the Internet and other alterna­ tive media. The members of Negativland themselves have collected nearly all oftexts produced by and about the case in Fair Use: The Story ofthe Letter U and the Numeral 2 (1995). 3By Romanticism we are referring to the aesthetic movement, encompassing literature, the visual arts and music, which emerged in the late eighteenth century and flourished until the mid-nineteenth century. The principal features of Romanticism were a rejection of the Enlighten­ ment valorization of reason and its embodiment in the emergence of modern industrial "civiliza­ tion," and a concomitant celebration of nature, emotion, instinct and passion as the fount of uncorrupted human spirituality and individual creativity. According to Jaszi, Romanticism is characterized by radical subjectivism which entailed "an extreme assertion of the self and the value of individual experience" in the face of an increasingly complex and alienating world of emergent industrial capitalism (1991, p. 455). However, we are less concerned with features of Romanticism per se than with its notions of creative authorship and authenticity which have become institution­ alized in copyright law as the juridical constitution of what Bettig (1993, p. 149) calls the "creative subject." Inspired by Foucault's (1984) analysis of the "author function" in the discursive formation of the modern artistic subject, scholars such as Saunders (1992),Jaszi (1991, 1994), Rose (1988), and Woodmansee (1984, 1994) have engaged in a genealogy of the juridical constitution of what Jaszi terms (1994, p. 33) the '''author-genius'' and its ideological roots in the Romantic movement. AsJaszi and Woodmansee succinctly summarize the Romantic ideology of authorship, "genuine authorship is originary is the sense that it results not in a variation, an in imitation, or an adaptation ... but in an utterly unique-in a word, "'original"-work which, accordingly, may be said to be the property of the creator and to merit the law's protection as such" (1994, p. 3). In the modern regime of authorship, the author is morally valorized as the solitary creator of unique and original work that embodies the author's unique experience and creative artistry in giving that experience aesthetic fOIID, whether it be in words, images or music. This moral evaluation of genuine authorship becomes legally enshrined in copyright law in the mid nineteenth century and has remained the dominant juridical definition of authorship, applicable to all forms of cultural production and intellectual property to this day, and not just to popular music and rock culture. In spite of the emergence and widespread. use of collaborative technologies of communication and cultural production, such as electronic sampling, hypertext and the Internet, as Woodmansee notes, "as creative production becomes more corporate, collective, and collaborative, the law invokes the Romantic author all the more insistently" (1994, p. 28). iEven the least subtle ofreaders ofInternet discussion groups like "alt.music.alternative" can not help but notice that a great deal of the discussion deal with authenticity in the Romantic sense based on songwriting ability, compatibility of "author's" life with song topics, and so forth. ·jThis is not an attempt to revive the author after his/her death. We are not attempting to imply that we literally know their "'intentions"; we are only constructing a narrative out of their storytelling after the fact and out of our own "common sense" observations. hThat "'I Still Haven't Found What I am Looking For" was intended as a marker ofU2's rock and roll authenticity is amply demonstrated in their feature film, Rattle and Hum. In the film, the song is performed in "authentic" gospel style by a Harlem church chOir, thus affirming the band's status as authentic contemporary embodiment of rock and roll's roots in the African-American experience. 7The fact that U2, as discrete individuals and as creators of the cultural commodity, were peripheral to the construction of authenticity and property right by legal discourse was under­ scored repeatedly as the case unfolded. Soon after the judgment was rendered, Negativland began to importune the band, its management., and associates such as producer Brian Eno to intervene on Negativland's behalf with Island Records. However, as Eno told them in a fax in November 1991, whatever sympathies U2 might have with their plight, there was little the band could do stop the machinery of juridical suppression of the single. He wrote "that I'm pretty sure that band wouldn't support this rather heavy-handed interference in what you are doing: apart from anything else their senses of humor and self-deprecation are completely intact and I think they would find the record pretty funny." However, as he reminded them, "you should realize that they don't control Island Records or Warner-Chappell" (Negativland, 1995, p. 31). Indeed, to U2's credit, it 17

CSMC HERMAN AND SLOOP apparently did pressure Island to back off from demanding damages from Negativland and SST. As Chris Blackwell, President of Island Records told Negativland in November of 1991, "I am getting a huge amount of hassle from the members ofU2 not to press for payment." He blamed the members Negativland themselves for their predicament by not requesting permission to sample the band's recording, and, since Island had already incurred costs of $55,000 in securing the law judgmen~ he declared that he was "not prepared to eat these legal fees" (Negativland, 1995, p. 32; emphasis in original), The subordinate status of U2 within the discursive realm of corporate sovereignty of the case was also reiterated in the only direct communication between the band and Negativland. In what was one of more entertaining episodes in the case, U2's guitarist, The Edge, was "ambushed" by Mark Hosler and Don Joyce under the guise of interview with Mondo 2000 magazine about U2's Zoo TVtour inJune of 1992. The Edge was discussing the tour's innovative use of live audio~visual sampling of satellite transmissions with WIRED's editor, R. U. Sirius, when Hosler and Joyce jumped in to discuss the case. The Edge expressed regret for Negativland's predicament and said that if it had been up to the band, the whole situation would have worked out differently. Moreover, he argued, because of all the negative publicity in the music press smrounding the case, U2 was almost as much of a victim as Negativland. As he told Hosler and Joyce, "I know you have really taken a kicking and I'm sorry about how it has all come out, Island Records ham't been affected, but we have gotten so much shit in the media about this and it's really annoying' (Negativland, 1995, p. 91; emphasis in the original). Interestingly, in explaining U2's relative impotence to affect the case, the Edge ended up basically rearticulating the logic of restricted symbolic economy of the cultural commodity. "I don't imagine Island was upset about the sampling aspect of the record"; instead, it was its satirical subversion of its sovereignty over the authenticity of the commodity and its exploitation with which they were concerned. When asked by DonJoyce ifU2 couldn't put a provision in their contract allowing for fair and free sampling of their work no matter what the context, The Edge replied, "I am not sure we can make a judgment like that ... the deal that we have is that we sell or rent the use of copyrights to somebody else. That is the whole idea of having publishing and record deals. They have the right to exploit our work. ... They would see it in very simple terms as protecting their own property" (Negativland, 1995, p. 89). Accordingly, the Edge argued, "although we would have reacted in a different way, the lawsuit wa.s not om lawsuit. Although we have some influence, we weren't in a position to tell Island Records what to do ... they weren't suing you on om behalf. They were suing you on their behalf' (Nega.tivland, 1995, pp. 84,91; emphasis original). Eventually, it should be noted, the combination of Negativland's persistence, a mountain of negative publicity in the musical and entertainment media, as well as pressure from U2, Island Records agreed to return the single and its copyright to Negativland. However, as we will discuss below, the intransigence ofeasey Kasem has blocked legal release of the single to this day. However, in keeping with the judgment of the cyberspace community, the single is available for downloading at the Negativland home page on the World Wide Web athttp://www.negativlandland.com. 8For those interested in such details in all of their stunningly ironic glory, we suggest purchasing Negativland's own documentary history in Fair Use: The Story of the Letter U and the Numeral 2 (I 995a). !IThe status of the "fair use" provision within copyright law is a complex issue and, although it formed an important part of the Negativland case, it is not our primary focus here (for reasons that will be made dear shortly). Basically, the "fair use provision" of the 1976 law establishes a "four factor" test for whether an appropriation of a copyrighted work can be considered to be fair use: 1) the purpose arid character of the use, including whether such use is of a commercial or non-profit nature; 2) the nature of the copyrighted work (i.e., whether it is factual of fictional or published or unpublished); 3) the amount and substantiality of the appropriated portion in relation to the copyrighted work as a whole; and 4) the effect of the use of copyrighted material upon the potential market for or value of the copyrighted work [see 17 U.S.C. §107 (1-4)]. For detailed discussion of the evolution of Fair Use as legal doctrine, especially in the context of sampling technology, see Jones (1995), Korn (1995) and Marcus (1995). Negativland also maintains a collection of resources on copyright, fair use and intellectual property issues on its World Wide Web site at http:// \vww.negativland.com/intprop.html. lOIn brief, Campbell v. Acuff-Rose Music, Inc. involved a parody of the original Roy Orbison song, "Pretty Woman" by the rap group 2 Live Crew. The court found that the parody was an acceptable IX

POUT]('S OJ AlTTHENTlClTY fair use under the Copyright AcL In brieL using factors I, :1, and ·t of the Fair Use Provision. tilt" decision laid down several principles in considering whether an appropriation of a copyrighted work is to be considered fair use. According to Negativland (199Sb), these principles can be summarized as follows: the more the new work transforms either the material nature or symbolic meaning of the original, the more likely it is to be fair; the more the new work comments on the Oliginal in terms of critique, satire or parody, the more likely it is to be fair; the less of the original work thaI is taken or copied form the original, the more likely it is to be fair (although the court stressed that parodic appropriation, which depends upon the identification of the ori!:,rinal to work as parodic commentary, is likely to be given more leeway than other uses of appropriation!; thp less commercial and widely distributed the new work is, the more likely it is to be fair (although the commercial or non-commercial nature of the new work is not enough by itself !o determine whether or not it is fair use); and, finally, these principles are to be used to d~termin(' thp effect uf the lise on the market for the original. That is, the less the new work replaces the original in its own potential market, the more likely it is to be fair. The text olJustice Souter's opinion in the cas(~ call also be found in Negativland \ 1995a). To date, Camphell v. Acujf-Rose remains the govemmg casp m terms of copyright infringement and fair use in the field of music. ironically, had this decision been rendered before Island Records/Warner-Chappell Music sued Negativland and SST. it --;\'l'1l\\ likely that Negativland single would have been considered to be fair use unde-r Its prinCiples IINegativland's notion of appropriation as a dial0brical cultural practice obviously has deal resonances with the understanding of authorship and authenticity which characterizes Afrodia­ spork musical culture, particularly that of hip-hop. As Dick Hebdige has charactelized the reggae practice of "versioning," "Jt\, a democratic principle because no one ha'i tht' final ~ay. EVf'ryhody has a chance to make a contribution. And no one's version is treated as holy Writ" (1!)H7, p. 14'). Fot" Hebidge, the practice ofven;ioning in Afrodiasporic music-involves a logic of invocation and evocation where the referenced version of song, rifl~ lyric, rhythm takes on alternative lives and alternative meanings in uniquE' contexts. This practice of versioning, according to Potter (J 99H) and Rose (1994), is taken one step further in hip-hop with the fusion of AfnKf'ntric "signifyin· ,­ fomls of orality with sophisticated technologies of electronic reproduction, such as sampling, which create what Rose terms "post-literate orality" that enables a practice of relational and situational narrative originality. The point is not to invent a new story_ but tn tell a shar(>Q story lT1 a new way in a unique context so ib meaning is "fresh." This complex fusion of orality and postmodern technology (sampling) sustains collective memory and history and creales a self constructed identity that is resistive to the dominanl culture. According to Rose, sampling also creates collective memory through paying homage and respect (or disrespect) to musical and cultural predecessors, and thus embodies a principle of authorship that is communal rather than ~ingular. Finally, in the context of Afrodiaspnric culture, sampling takes on a distinctive political valence of resistance and transgreSSion as a form of "sonic theft." Ro~e argues that sampling represents payback to record companies who have ripped off black music fOt" most of the twentieth century. For an analysis of the centrality of sampling to hip-hop, and manner in which it has come into conflict with the dominant leg-al discourse of authorship and property right see Marcu<; : 19~1:)).

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