Date: Wed, 18 Feb 98 09:49:00 -0800
From: "McPherson, Brian" <bmcphers@rmslaw.com>
To: "RTMARK@PARANOIA.COM" <RTMARK@PARANOIA.COM>
Subject: BECK
Hi. My name is Brian McPherson and I am Beck's attorney. Needless
to
say, I found your email a little bit surprising - bragging about
copyright infringement is incredibly stupid. You will be hearing
from
me, Universal Music Group, BMG Music Publishing and Geffen Records
very
shortly. In the mean time, why don't you email me your phone
number and
mailing address to make things a little easier?
Brian McPherson
Rosenfled, Meyer & Susman, LLP
310-246-3242
Date: Fri, 3 Apr 1998 11:25:51 -0800
From: Mark/Negativland <mark@negativland.com>
To: "McPherson, Brian" <bmcphers@rmslaw.com>
Dear Mr McPherson and all at Geffen Records and BMG-
We were recently forwarded your e-mail regarding the DECONSTRUCTING
BECK CD. We would strongly suggest that you re-read the fair use portion
of our nation's copyright laws. We in Negativland have been very vocal
in the last 7 years about wanting to see a significant expansion
of the concept of Fair Use so that it not only applies to reviews, news,
criticism and parody, but to the ever-growing impetus in late 20th Century
art to create new and unique works by deconstructing existing works. This
has become a commonly practiced and critically acclaimed technique among
all art mediums since the turn of this century, and we continue to be at
a loss to understand why music, in particular, is the last of all of them
to recognize the aesthetic legitimacy (not to mention inevitability) of
"unauthorized" collage. You might also check out the 2 Live Crew case before
the Supreme Court and note the crucial distinction they wisely made between
theft and CREATIVE TRANSFORMATION. And for a little irony, don't skip the
beginning of those copyright laws where our founding fathers stated that
the whole purpose of LIMITED copyright was to encourage the creation of
new work! The application of copyright's Fair Use provisions to transformative
works such as this Beck deconstruction is all about doing just that.
We welcome Illegal Art's and Rrtmark's efforts in
creating DECONSTRUCTING BECK. You and your client, Beck, have nothing to
fear from this sort of work WHICH IS IN NO WAY CO-OPTIVE OR COMPETITIVE
WITH THE ORIGINAL MATERIAL! This is so patently obvious in the work itself,
it is a little embarrassing to have to point it out to a lawyer. All artists
have nothing to lose and everything to gain from allowing work such as
this to exist, free of anti-art litigation based purely on economic turf
presumptions. The legal profession's continuing perverse and careless refusal
to distinguish between whole and unmitigated theft for profit and the fragmentary
re-use of our common cultural artifacts in the creation of new work is
the best reason we know of to keep lawers out of art. Generally, they appear
to have no interest in or understanding of what artists actually
want to do or why they want to do it. These are exactly the wrong people
to be controling what gets made and what doesn't. For the sake of intelligent
art, PLEASE cease and desist! Your protective efforts WILL be appreciated
when they are applied to whole work bootlegging and piracy, not to harmless,
creative experiments like this in which you can only achieve foolishness
by protesting.
We'd love to send you a copy of our book FAIR USE: THE STORY OF THE
LETTER U AND THE NUMERAL 2, detailing Negativland's legal adventures with
Island Records and U2 resulting from the release of our "U2" single. Please
let us know if we may do so. We think our book, a film made about the incident
("SONIC OUTLAWS"), and many recent lectures we have done, all
present a very clear and cogent argument for why there is a huge and crucial
difference between bootlegging or piracy, and the creative transformation
of the existing culture around us into new and original works of collage.
The choices that you and Beck make in how to handle this situation can
have a great and positive imapct on this ongoing public debate over the
future of art, culture, and whether they will be allowed to comment on
each other as we move into the next millenium. Read the two articles we
have attached here...there are MANY MANY people out there who agree with
this "new" way of thinking....we urge to you to research this more, share
all this information with Beck, and make a more thoughtful decision to
favor the freedom of art and the free speech of all.
Sincerely,
Negativland
P.S. Please forward this letter to BMG attorney Peter Brodsky. We don't
have his e-mail address.
SALON MAGAZINE
http://www.salon1999.com/21st/reviews/1998/04/02review.html
[ 2 1 S T_R E V I E W S ]
Date: Tue, 7 Apr 1998 10:25:55 -0700
From: "Dennehy, Dennis" <dennehy@geffen.com>
To: "Mark/Negativland" <mark@negativland.com>
Subject: RE: Deconstructing Beck- Fair Use
Um...as far as I can tell...and I've also checked with management...and
you can check with Illegal Art -- we haven't done anything about it.
Thanks for your concern.
Date: Fri, 3 Apr 98 12:11:00 -0800
Sender: "McPherson, Brian" <bmcphers@rmslaw.com>
From: "McPherson, Brian" <bmcphers@rmslaw.com>
Organization: Rosenfeld, Meyer & Susman
To: "Mark/Negativland" <mark@negativland.com>
Subject: RE: Deconstructing Beck- Fair Use
Mime-Version: 1.0
Hi Negativland. I don't know you, but I do know a bit about your
case. What Beck, Geffen, etc. plan to do is certainly none of your
business, as far as I can tell. Furthermore, I kind of resent your unsolicited
criticism of my knoeledge of copyright law. But hey, it's a free
country, and I guess you have a lot of free time on your hands. Good day.
Brian McPherson
April 8, 1998
VIA E-MAIL
Illegalart@detritus.net
Attn: Philo T. Farnworth
It has come to our attention that a CD entitled “Deconstructing Beck”
is currently available for sale by mail order through your internet address
and/or website. It is our understanding that the CD contains thirteen
tracks, each of which is entirely comprised of samples or snippets from
various compositions written and recorded by Beck, one of America’s most
prominent recording artists. Most of the songs on “Deconstructing
Beck” are co-owned by Beck and BMG Songs, Inc., and are published exclusively
by BMG Songs, Inc., throughout the world. No license has either been
requested or issued for this use. Your unlawful use of Beck’s material
on “Deconstructing Beck” constitutes an infringement of BMG’s and Beck’s
rights under the U.S. Copyright Law.
We demand that you immediately cease and desist from any further sales
of “Deconstructing Beck”. The foregoing shall not be deemed to limit
or prejudice the right of BMG or Beck, all of which rights are specifically
reserved.
Sincerely,
Peter Brodsky
Peter Brodsky
Assistant Director
Legal & Business Affairs
BMG Entertainment
PB/dm/Beck e-mail ltr 031998
Date: Thu, 9 Apr 1998 12:18:00 -0700
From: Mark/Negativland <mark@negativland.com>
To: "McPherson, Brian (Geffen lawyer)" <bmcphers@rmslaw.com>, "Brodky,
Peter (BMG lawyer)"Peter.Brodsky@bmge.com
Dear Mr. McPherson and Mr. Brodsky,
Greetings, and yes, we do tend to make plenty of free time to defend
and
protect free appropriation which is at the procedural and aesthetic
heart
of our entire body of work. No band is an island, and what is done
to any
of us (legally speaking) is done to all of us.
To be perfectly honest, our references to the content of copyright law
were
not intended to suggest anything about your knowledge of same, but
to point
out that we have a little as well. When dealing with attorneys on the
hunt,
we like to get quickly past the stage where they hope to collapse the
opposition with intimidating threats of "legal action" which count
on the
legal ignorance (and fear of lawers) of grass roots individuals to
achieve
a quick and painless settlement. You understand, it's just an informative
tactic! But it does seem well placed, as indicated by your brief and
casual
dismissal of all our thoughtful and constructive points in favor of
just
telling us to butt out of this big business business. How typically
oblivious to the actual artistic issues involved here do you propose
to be?
To quote ourselves - "ART IS NOT DEFINED AS A BUSINESS."
In defending this kind of work, we hope to implant the novel idea that
when
art and commercial law come into conflict, the contest should be resolved
on a level playing field - one that takes the imperatives, perogatives,
and creative impetus of the art practice involved fully into account.
For
too long, the music biz has been in the business of suppressing valid
works
of contemporary music which employ free appropriation and sampling
by
invoking laws that (however poorly considered time proves them to be)
were
NEVER intended to be used for this purpose. The copyright laws predate
the
kind of technologies (samplers, computers, cassette decks, VCR's, xerox
machines, etc.) which ENCOURAGE this practice, and the people who wrote
them could not have had a clue about these new developments in the
creation
of new works. But now it's happening, and it is incumbent on all of
you who
employ these now inadequate and blind-sided laws to make the crucial
distinctions between whole-work piracy and bootlegging and the culturally
valuable practice of collage which uses elements and fragments of the
existing
culture surrounding us all.
Truly, we would love to get the law itself brought up to date in this
regard, but this cultural wisdom continues to elude all those "in charge."
So for the time being, it's actually up to all of us who actually care
about our own cultural evolution to keep these laws out of places where
they don't belong. Are you so all-fired ready to apply poorly defined
laws
to situations never forseen by those laws... for what purpose?
(Should we
expect claims of economic opportunism, total marketplace control, or
criticism
deflection from you here?) It should be obvious that these are the
kinds of
reasons that make attempting to get "prior permission" for doing
this kind
of work futile because it will not be given even if economic small
fry like
us could afford the cost, which we can't. This is why parody is a legally
protected form. But the misguided use of these laws against other forms
of
appropriative expression amounts to the same kind of censorship parody
is
intended to be protected from. Once again, when the "infringing" work
is
NOT infringing - it is neither supplanting nor competing with the source
used (and in this case the source is not even recognizable!) - what
possible purpose is there in crushing it? There is absolutely NO threat
to
Beck's profits here! Why wouldn't you LIKE the free publicity and
advertising? We don't get it, but we're also quite used to expecting
knee-jerk, formula bound reactions on the part of corporate culture
owners
with sloppy law at their disposal.
This is an IMPORTANT struggle to open up the fewer and fewer, and
increasingly centralized and monopolistic cultural institutions (which
inevitably presume themselves to BE our national culture) to direct
reference commentary, criticism, and RE-CREATION from the however silly
perceptions held by those of us who by choice remain totally "outside"
those corporately controled channels of mass distribution and mass
communication. Is there actually something wrong with this? Or does
it
strike you, as it does us, that this is probably a healthy alternative
which should be kept alive and kicking? Let's not even bring up FREE
SPEECH. Oops, well there it is anyway. But seriously, Brian and Peter,
can you
possibly explain the BENEFIT to our national cultural agenda in the
"legal"
suppression you are engaged in? This is NOT a mountain that needs to
be
climbed just because it's there!
Please excuse our bluntness, and you shouldn't take our arguments
personally, as we eagerly debate this art survival issue in the same
obnoxiously vigorous way with all who will pay attention. We'd love
to hear
more detailed justifications for the path you are paid to pursue, if
you
can possibly spare the time. It might actually hone your skills for
the
coming court battle... (Yes, you guessed it, just another threatening
tactic!)
Sincerely,
Negativland
P.S. Aren't you slightly curious as to what the person you are representing
thinks about all this? Does Beck even know this is happening? We'd
be
interested in HIS opinion, even though according to most corporate
label
contracts, you guys have taken over ownership of his work in perpetuity
and
"it's out of his hands." Curiously untenable for the artist being
appropriated to be completely out of the loop, wouldn't you say?
P.P.S. Can we get an address from you to send you a copy of our "FAIR
USE"
book?
The below Geffen employee didn't know what Negativland's
first letter was about. When he was told about the McPherson letters,
this is how he responded.
From: a Geffen manager who has since requested anonymity
To: RTMARK
[abovementioned Geffen manager has also requested the elision of his
message]
Date: Fri, 3 Apr 1998 20:08:34 -0600 (CST)
From: rtmark <rtmark@paranoia.com>
To: a Geffen manager who has since requested anonymity
Subject: RE: Letter
Thanks for your note, and for your kind words. It's good to hear
it
didn't seem like much--we didn't think so either, frankly. But
apparently
the BMG lawyers are now pursuing Illegal Art with the intent of serving
an
order to cease and desist, and McPherson has replied to Negativland's
open
letter with acerbity and veiled threats. All of this strikes
us as
patently bizarre, considering the Negativland/U2 example you cite--that
certainly didn't do U2 any good, brought them bad publicity even though
it
became widely known that they weren't even aware of the legal efforts
at
first.
In any case, though this continuing absurdity has some measure of laughs
to generate, we hope your assessment is correct, and that the lawyers
are
acting out of pro-forma needs.
Best wishes,
rtmark
From hilderley@geffen.com Mon May 11 17:34:43
1998
Date: Fri, 8 May 1998 16:46:42 -0700
From: "Hilderley, Susan" <hilderley@geffen.com>
To: "'rtmark@paranoia.com'" <rtmark@paranoia.com>,
"'illegalart@detritus.net'" <illegalart@detritus.net>,
Cc: "'Denise_Incorvaia/RIAA@riaa.com'" <Denise_Incorvaia/RIAA@riaa.com>,
"Rosenblatt, Eddie" <erosenblatt@geffen.com>,
"Bennett, Bill" <bennett@geffen.com>, "Lapidus,
Greg" <lex@geffen.com>,
"Kenin, Melissa" <kenin@geffen.com>,
"Schiller, Jennifer" <JSchiller1@GEFFEN-LA.Geffen.com>
Subject: BECK / UNAUTHORIZED DISTRIBUTION OF SOUND RECORDINGS
May 8, 1998
Illegal Art
RTMark
RE: BECK / UNAUTHORIZED DISTRIBUTION OF SOUND RECORDINGS
To Whom It May Concern:
Geffen Records, Inc. ("Geffen") is party to an exclusive recording
agreement with the recording artist professionally known as Beck
("Artist"), and accordingly Geffen is the copyright owner of, with
exclusive rights to, the performances of Artist recorded during the
term
of such agreement and the exclusive owner of the right to use the
Artist's name and likeness for record purposes in connection with such
recordings.
It has come to Geffen's attention that you intend to distribute, and
have distributed, without Geffen's authorization, an album entitled
Deconstructing Beck containing master recordings embodying Artist's
performances and using Artist's name and likeness (the "Record").
As
Geffen has not granted permission for the use of the foregoing master
recordings or name and likeness, or the distribution of the Record,
such
use and distribution of the Record violates the U.S. copyright laws
and
the law of the State of California, and may subject you to other
actionable claims under relevant state and federal laws.
Geffen hereby demands that you immediately cease and desist from any
further distribution or other use of the Record, that you cause any
and
all third parties to whom you have entered into any agreement with
respect to the Record or to whom you have distributed the Record to
immediately cease and desist from exploiting or distributing same,
and
that you furnish us with an affidavit in which you represent that you
have complied with the foregoing demand.
In the event Geffen has not received the affidavit requested within
seven (7) days from the date hereof, Geffen will pursue appropriate
legal redress against you and any other infringing parties, including,
without limitation, the immediate commencement of proceedings seeking
profits as well as actual and/or statutory damages, and injunctive
relief.
Nothing contained herein shall be deemed an admission of any fact or
a
waiver of any of Geffen's rights or remedies in connection with this
matter, whether at law or in equity, all of which rights and remedies
are hereby expressly reserved.
Sincerely,
Susan Hilderley