TENETS OF FREE APPROPRIATION
From FAIR USE: The
Story Of The Letter U And The Numeral 2
by Negativland (1995)
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.
As Artists, the economic
prohibition of clearance fees and the operational prohibition of not being
able to obtain permission when our new context is unflattering to our samples
should not diminish our ability to reference and reflect the media world
around us.
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 least
as likely to have a positive effect on these areas of concern. (Rap/Hip
Hop sampling played a big part in the renewal of James Brown’s career,
and he sued them for it!)
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. |