I find television very educating. Every time somebody turns on the set, I go into the other room and read a book. - Groucho Marx

I Still Haven't Found What I'm Looking For: The Lawsuit That Nearly Killed Negativland

by James Keith
Oct. 11, 2012

Sampling has been an integral part of popular music for some time now. A quick scan of the charts will tell you that there are very few songs out there that don’t sample another song, and in fact entire careers are based almost entirely on sampling. The 1980s and early 90s, however, were a different time. The nascent sampling techniques pioneered by early hip-hop DJs were both celebrated and attacked. A lot of artists were happy that their music - often relatively unknown - was reaching new and wider audiences.

Quickly the line between Fair Use and flat-out stealing music became blurred and big business became extremely involved. Of course, a lot of the artists complaining and bringing these cases to court were (and still are) big names with bigger pay cheques. The moral high ground was questionable at best as artists only became threatened by fair use once they realised that they could be making significantly more than they already were. On the other hand, artists who perhaps pressed one or two 7"s on an obscure indie label were generally more than happy to have their music reach a wider audience.

Negativland were formed in the San Francisco Bay Area in the late 1970s around core members Mark Hosler, Richard Lyons and David Wills. Don Joyce first became involved with Negativland around 1981 when they were doing the 'Over The Edge' radio series that Joyce ran. From then on, their participation became more regular and they appeared every week until Joyce began working on their records with them, beginning with their fourth album, Escape From Noise. His role within the group, at least to begin with, was to be, in Joyce's words, "the tape guy", collecting those well-known samples from Christ-knows-where - with the effect of subverting Cold War panic, media skullduggery, advertising techniques and the way in which we approach information.

In 1991 Negativland sampled the U2 song 'I Still Haven't Found What I'm Looking For' as well as a test recording of radio DJ Casey Kasem exploding on air. Both parties objected to the use of their material, as did U2's label at the time, Island Records. This was not Negativland's first brush with controversy. To avoid a money-losing tour, they issued a press release stating that the song 'Christianity Is Stupid' had inspired David Brom to kill his parents. Though it was true Brom had argued with his parents about music, at no point were the band mentioned or involved. This claim was widely reported throughout the media with "little to no fact-checking". [1]

In 1991 Negativland released the infamous U2 EP, which featured extensive samples of the U2 song 'I Still Haven't Found What I'm Looking For' as well as samples from a profane lapse in professionalism by US Top 40 host Casey Kasem. One of the least aggressive lines being "These guys are from England and who gives a shit!" The cover featured "U2" in massive letters and a picture of a lockhead bomber. Island Records took immediate umbrage with it and insisted the cover and the title breached copyright laws, as did the song. Versions of the story conflict, as one would expect in a legal case worth close to $100,000 in damages that had the potential to destroy careers and livelihoods (and did - most of the band were left practically destitute). Still, one thing we can be sure about: one's rights both in the music industry and on a wider scale run proportionately with the size of your bank balance and your legal team.

In June 1992, R. U. Sirius, publisher of Mondo 2000, was contacted by U2's publicists regarding the possibility of interviewing Dave "The Edge" Evans as a means of promoting the colossal multi-million dollar Zoo TV Tour. Now, it must be noted that this tour was known for its liberal use of sampling and found sounds, without a hint of irony following the legal proceedings with Negativland just a year earlier. The interview began innocently enough, though Sirius decided to have his friends Hosler and Joyce to conduct the interview for him, without Evans' knowledge. They began asking him of U2's thoughts on the ideas surrounding found sounds and sampling copyrighted material. At this point, they revealed their identities.

An embarrassed Edge purported that U2 were bothered by the sledgehammer legal approach Island Records took in their lawsuit, and furthermore that much of the legal wrangling took place without U2's knowledge: "by the time we [U2] realized what was going on it was kinda too late, and we actually did approach the record company on your [Negativland's] behalf and said, 'Look, c'mon, this is just, this is very heavy...'" Island Records reported to Negativland that U2 never authorized samples of their material; Evans' response was, "that's complete bollocks, there's like, there's at least six records out there that are direct samples from our stuff."[2]

Although it's clear U2 have very little support in the matter, morally speaking, Negativland have been ruined by "a matter of principle". One that is both sketchy and subjective. To give you a breakdown of just how financially shafted Negativland were, one of the conditions issued by Island Records and Warner-Chappell music (aside from returning all 692 promotional copies, any of the equipment used to press the records and, of course, reassigning all of Negativland and SST's copyrights pertaining to the record) is that they must pay $25,000 and half the wholesale proceeds of the 6951. Furthermore, the cost to SST has led to a huge amount of bitterness on their part and they subsequently tried to recoup their losses from the band, taking all royalties from the band's records.

Now the climate in the industry seems to be progressing; artists have become more savvy to the fact that earning through record sales is unlikely at best and that giving away music is, in fact, beneficial - money can be made just from touring, merchandise and other avenues. Interestingly, as this realisation is reached (in line with the spending habits of consumers), so too does the way the artists approach the subject. The Edge's embarrassment was notably only expressed much later, though it is within the realm of possibility that Island Records were powerful enough to override the band's wishes.

To give credence to U2's argument, however, is not without its flaws: First and foremost, U2 played the game cleverly, insulating themselves from Negativland before claiming the band should have contacted them. Secondly, The Edge claims that U2 approached Island to stop proceedings, whilst simultaneously claiming that they did not know about the case and then defending them on the grounds that it was all about "costs rather than damages".

It could be argued that U2 were genuinely ignorant of the case until it was too late, but their does remain the question of why the case was pursued so doggedly by what Hosler calls "$400/hour lawyers" after both Negativland and SST agreed to not only recall all the records and pay the costs of destroying them. If it was, as Evans claims, "a matter of consumer fraud" (i.e. Island were concerned that the record's cover which featured "U2" in big letters would confuse consumers, tricking them into thinking they were buying the latest U2 record), why then did they pursue the band for sampling copyrighted material? And why was it OK for U2 to use exactly the same methods of recording on a much larger scale on their Zoo TV tour? The only answer I can gleam from any of the material I've read on the matter is "just because".

[1] http://www.negativland.com/edge
[2] http://open.salon.com/blog/coryfrye/2009/12/20/negativlands_helter_stupid_20_years_later


James Keith is editor of Kick Out The Jam and an idiot man-child masquerading as a writer. He also claims to be a 'jam facist and Motown revolutionary', whatever that is.  http://kickoutthejam.net