Negativland's Tenets of Free Appropriation

(CMJ New Music Monthly May 1995 issue, page 51)

With current technology making it possible to make immediate, perfect copies of words, images and sound and recombine them in previously impossible ways, the time may have come to rethink the idea of copyright and "fair use." The following "Tenets of Free Appropriation" come from _Fair Use: The Story of the Letter U and the Numeral 2_, a new 288-page book and 72-minute CD self-published by the band Negativland, which chronicles its four-year battle over its release of a single called "U2." Reproduction of this essay is strongly encouraged.

*Free appropriation is inevitable when a population bombarded with electronic media meets the hardware that encourages them to capture it.

*As artists, our work involves displacing and displaying bites of publicly available, publicly influential material because it peppers our personal environment and affects our consciousness. In our society, the media which surrounds us is as available, and as valid a subject for art, as nature itself.

*Our appropriations are multiple and fragmentary in nature; they do not include whole works.

*Our work is an authentic and original "whole," being much more than the sum of its samples. This is not a form of "bootlegging" intending to profit from the commercial potential of the subjects appropriated. The law must come to terms with distinguishing the difference between economic intent and artistic intent.

*There is no demonstrable negative effect on the market value of the original works from which we appropriate, or the cultural status or incomes of the artists who made the original works. Referencing a work in a fragmentary way is at at least as likely to have a positive effect on these areas of concern.

*The urge to make one thing out of other things is an entirely traditional, socially healthy, and artistically valid impulse which has only recently been criminalized in order to force private tolls on the practice (or prohibit it to escape embarrassment). These now all-encompassing private locks on mass media have led to a mass culture that is almost completely "professional," formularized, and practically immune to any form of bottom-up, direct-reference criticism it doesn't approve of.

*The courts' often-espoused principle that "If it's done for profit, it can't be fair use" represents a thoughtless and carelessly misguided prejudice against the struggle of new art to survive. Making media -- any media -- is expensive. It requires substantial up-front investments in time and manufactured goods to create, duplicate, and distribute anything. The courts' easy reliance on a not-for-profit standard for fair use ignores the reality that artists, no matter what they choose to do, need to support themselves and their work with a return on their investment just like everyone else. The currently applied "non-profit only" standard simply assures that only the independently wealthy may dabble in fair use. If society values the challenging and reforming aspects of critical, fair use works that bubble up from independent, grassroots thinking, the law should not condone the smothering of such works by disallowing their economic survival in our "free" marketplace.

*We believe that artistic freedom for all is more important to the health of society than the supplemental and extraneous incomes derived from private copyright tariffs which create a cultural climate of art control and Art Police. No matter how valid the original intent of our copyright laws may have been, they are now clearly being SUBVERTED WHEN THEY ARE USED TO CENSOR RESENTED WORKS, to suppress the public need to reuse and reshape information, and to garner purely opportunistic incomes from any public use of previously released cultural material which is, in fact, already publicly available to everyone. The U.S. Constitution clearly shows that the original intent of copyright law was to promote a public good, not a private one. No one should be allowed to claim a private control over the creative process itself. This struggle is essentially one of art against business, and ultimately about which one must make way for the other.