Adventures in Illegal Art

We caught up with a friend last night for dinner followed by Mark Hosler’s
presentation, "Adventures in Illegal Art: Creative Media Resistance and
Negativeland" in SU’s Shemin Auditorium. Hosler’s been involved with
Negativeland for 25 years. The group
self-identifies with media hoaxes; provocative audio-mixed new media films and
shorts; and radical fair use
(i.e., it’s all public domain). They’re well-known for
lifting material from U2, mixing
it into a two-sided vinyl single including profanity and stolen U2 cuts, then
repackaging the album in a jacket with U2 featured prominently so as to dupe
unsuspecting consumers. Lawsuits followed, as you might expect, and Hosler
alluded to a dicey four years, fraught with legal uncertainty. Here’s that album cover:

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Thieves, All

Clicking through the register of my new bloglines
account, I found this bit from Wired News called "Facing
the Copyright Rap."
  A triumvirate of judges in Cincinnati put
their noggins together–clunk!–and ruled that sampling is a violation of
copyright law.  Best part–even if the snippets are unidentifiable as
a re-appropriation of another’s protected works.

"If you cannot pirate the whole sound recording, can you ‘lift’ or
‘sample’ something less than the whole? Our answer to that question is in the
negative," the court said.

"In the negative"?:  Does that mean ‘no’?  Or must we
find different ways to say ‘no’ because it’s been used before in a song or two?
(Aside: Simon Frith showed us the voice is an instrument, too, right?)

And I oughta stop here because it’s too easy to fisk on the statement from the Cincy judges and
because I should be reading Eagleton’s book on culture right about now. But it’s
a problematic ruling for a whole heap of reasons, not the least of which–in my
world–is a workshop I’m arranging on the remix essay later this semester. 
Especially if we want to put students’ work on the web, and especially if
we want their work to re-appropriate copyrighted material in the public sphere,
how should we distinguish between the tried and true rules about attribution
when, as this ruling would have us accept, sampling need "not rise to the
level of legally cognizable appropriation" for it to violate
copyright.  As kindling to the (out)rageous plagiarism debate, particularly
as we venture away from the paper-bound essay.