Plunderphonics and a Different Understanding of “Fair Use”

Where do I start with Plunderphonics?  Where does anyone start?  There’s so much ground to discuss.  How about this:  if minimalism is America’s monolithic contribution to the 20th Century avant garde, then Plunderphonics is surely Canada’s greatest input.*  Seriously; it’s not hyperbole.  In every respect save, for what should be obvious reasons, publicity, Plunderphonics is on par with American minimalism.  Get with it.  The term “plunderphonics” itself, coined by pioneer and highly respected visual artist John Oswald in the mid ’80′s, has come to represent an entire widespread – if largely anonymous – genre.  Oswald’s disciples are both well known and far flung, ranging from Negativland, the Tape Beatles, Philip Jeck, all the way up to current Pitchfork darling (and, cynically, Microsoft shill) Girl Talk.  I won’t even attempt to catalog the indirect descendants.  Alright, fine: hip hop.  At least the vast majority of it.

* Fret not Michael Snow fans, his place in Canadian music and especially film history is no doubt cemented.  For those that don’t know, his record Music for Piano, Whistling, Microphone and Tape Recorder and film Wavelength, are absolutely mandatory.  And thanks to the internet, you might actually find them.

Okay, here’s another analogy for you:  John Oswald is to sampling as Christian Marclay is to the modern day DJ.  Only Marclay at the very least had the benefit of the existence of turntables in the 1970s.  The digital sampler was a decade away when Oswald first started splicing tape in the late ’60′s.  Hip hop artists who praise the day the sampler was invented should genuflect before Mr. Oswald.  The details as to how he created his initial plundered masterpieces are beyond the scope of this column, but suffice it to say that nutcase, single-frame-at-a-time, tedium-is-my-friend animator Harry Smith would be impressed.  I envision a lot of long nights splicing tape, wondering if anything he did made any sense, but you can find more information on Oswald’s processes on his endlessly fascinating website.

Basically, Oswald takes whole snippets of popular music, which he refers to as ‘plunderphones,’ and manipulates and/or rearranges them as to his liking, typically one performer/group per composition.  But we aren’t talking about five seconds from the outro of some Jethro Tull deep cut.  Importantly, the samples are all immediately identifiable – the opening from “I Still Haven’t Found What I’m Looking For” or MC5′s Rob Tyner screaming “Kick out the jams!”*  For example, the track “O’Hell” from the Elektrax CD slices and dices 14 different Doors songs into one concise four minute masterpiece.  Doesn’t sound that interesting, right?  ”I could do that,” you might think.  Hip hop producers do this all the time, right?  Well, not exactly, as Oswald doesn’t separate out instruments or even ‘beats,’ choosing to sample the musical quotes wholesale out of the source material.  But close enough.  So who cares?

* I remove the “motherfucker!” from this phrase not out of prudishness, but because Oswald doesn’t allow Tyner to finish his famously caterwauled demand, rather forcing him to repeat the word “kick” over and over.  Your brain wants so badly to hear the entire phrase “Kick out the jams, motherfucker!”, as you have a thousand times before (okay, well, as I have a thousand times before), but it never comes.  A comment on censorship?  Perhaps.  A kick in the head to demand greater listener engagement by rendering one of rock’s greatest call to arms impotent?  Definitely.

Well, I do.  Why?  Because unlike most hip hop, Plunderphonics sends my thought processes into overdrive.*  Quite simply, when I first heard Oswald’s landmark 1989 album Plunderphonic, it forced me to entirely re-evaluate the way I listen to music, resulting in my evolution as a more active listener.  What does it mean to be a pop star, and why is our society obsessed with them?  Why does pop music obsessively, monotonously follow its typical verse/chorus/verse structure?  What is the ‘right’ way to listen to any piece of music?  Isn’t every listener who tinkers with the speed on a record player a musician?  And damn, there’s no way he cleared all of these samples, right?

* As every single girlfriend has, shall we say, less than gently pointed out to me, this is not soothing music that fades into the background of your life.  Even listening to the Plunderphonics 69/96 compilation as I wrote this article caused me to complain to a friend of my difficulty writing while listening to Plunderphonics.  His response hit the nail on the head:  ”Cognitive thought generally is difficult while listening to Plunderphonics.”

But what makes Plunderphonics such an engaging, if not outright demanding, listen?  I’ll admit it, though I suppose it should be no surprise from an entertainment attorney:  I’m a little obsessed with pop culture.  I make no secret of my subscription to Entertainment Weekly, my fascination with the Beyoncé/Rhianna model of pop singer, or even my fondness for the current, supposedly zeitgeist-creating nighttime soap opera that has not yet overstayed its welcome, whatever that may be.  And I’ll go ahead and admit it for you:  You are obsessed with pop culture.  You can’t not be.  Pop culture is too prevalent in our society and doesn’t allow you to look away.  That’s why it’s called pop culture.

John Oswald takes several of the pop music touchstones, the objects of my (and your) obsessions, and effortlessly scrambles all of them in my head so adeptly that, well, there are no words.  Put it this way:  what if someone reedited Gossip Girl to make one of those 1950′s classroom filmstrips intending to scare you into not having sex?  Now we’re getting there, but we’re still pretty far afield of the Plunderphonics experience.  It’s just one of those musical experiences that is startlingly different from any prior strain of accepted musical expression that you’ve ever heard, despite the fact that you’ve likely heard virtually every single second of Plunderphonics before.  I mean, you’ve heard Michael Jackson before, right?  If not, uh, well… you should probably just stop reading now.  Thus, the best guidance I or anyone else could possibly put into words is to just listen.

Cultural concerns aside, Plunderphonics obviously raises a TON of provocative legal issues, and for that, I love Mr. Oswald.  I like thinking about provocative issues, legal or otherwise, while I listen to music, watch a movie, or generally take in any art.  So let’s talk law, and let’s start with the obvious.  Q:  Isn’t this completely illegal?  A:  Well, both the American and Canadian copyright laws – to put it mildly – frown upon you taking your favorite pop songs, slicing them up, taping them back together again, putting your name on them, and then distributing the resulting Frankenstein’s monsters to the public.  But there’s definitely more to it than that.

Let’s start at the beginning.  Ostensibly, Congress enacted copyright laws to encourage creativity, research and the pursuit of knowledge and information.*  To do this, Congress decided to provide the ‘authors’ (a heavily litigated term in its own right) of artistic works a legal monopoly over their work.  More specifically, Section 106 of the U.S. Copyright Act allows the author of an artistic or creative work the following exclusive (though transferable) rights:

1) The right to reproduce the work in copies or phonorecords;

2) The right to prepare derivative works based upon the work;

3) The right to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4) The right to perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5) The right to display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

6) In the case of sound recordings, the right to perform the work publicly by means of a digital audio transmission.

Section Three of the Canadian Copyright Act provides a substantially similar bundle of sticks** to Canadian authors.

* The Constitution actually provides Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Art. I, Sect. 8, Cl. 8.  So if you consider yourself an anti-copyright hardliner, one avenue is to knock yourself out trying to amend the Constitution.  Have fun with that.

** Law professors around the country tell students to think of the rights provided by the U.S. Copyright Act as a “bundle of sticks.”  I only mention this because I always thought the idea of a “bundle of sticks” funny.

Seems fair enough.  Without copyright laws, why would people continue to creatively express themselves or pursue new information or knowledge?  But wait, if the purpose of the copyright laws is to promote science and useful arts, why do we penalize authors who use not a piano or a paintbrush as their means of expression, but rather the art of others?  Is music no less meritorious if it is created by recontextualizing prior works?  This is one of Oswald’s primary arguments in his groundbreaking paper “Plunderphonics, or Audio Piracy as a Compositional Prerogative,” first presented to the Wired Society Electro-Acoustic Conference in Toronto in 1985.  After cheekily noting that in English, the word ‘sample’ is often preceded by the word ‘free,’ Oswald explains that even though the music industry discourages it, the active listener might speed up or slow down their store-bought music or even juxtapose two or more pieces together.  Actions such as these blur the already fine line between sound producers and sound reproducers, even more so in an era of computer software that writes music for a composer.  So what separates a musician that merely imitates, say, Bruce Springsteen’s voice, from a musician that explicitly uses The Boss’ music as a building block?  Why does the former receive protection, nay encouragement, while the latter is potentially a criminal?*

* Yup, copyright infringement is actually a crime.  See U.S. Copyright Act, Sect. 506.

This is precisely the issue Oswald ran headlong into when he found himself on the receiving end of a cease and desist letter from none other than Michael Jackson’s attorneys after he released the wildly inventive Plunderphonic CD, which featured a reworking of Jackson’s “Bad” into the squeaky voiced “Dab.”  Despite carefully crediting the artists on each track and only sending copies to radio stations and libraries, all stamped “Not for Sale,” Oswald ultimately had to lawyer up and agree to a settlement whereby he allowed the master tapes and all remaining CD copies to be destroyed.

Now, query whether Jackson would have cared had the CD’s cover not featured Jackson’s head on the body of a naked woman – while it’s easy to see the artistic merit, Oswald maybe poked the bear a little too hard with that one – but the point is that the stringent copyright laws can actually serve to limit artistic expression.  The drafters of the original U.S. copyright law signed in 1790 could not foresee the manner in which their good intentions were bastardized, taking the tools of expression away from artists, regardless of the societal or cultural value of the resulting work.  To cop a line from one of Oswald’s fellow Canadians, the medium really is the message, but Congress doesn’t care.*

* Neither do the courts.  The two major sampling cases used again and again by copyright owners against illicit samplers can each be boiled down to single sentence bright line rules.  With respect to copying musical works without a license, the court in Grand Upright Piano v. Warner, 780 F. Supp. 182 (S.D.N.Y. 1991), dogmatically proclaimed “Thou shalt not steal.”  Similarly, the court in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), informed musicians that they must “Get a license or do not sample” sound recordings.

“BUT WAIT!,” you exclaim.  ”The Electronic Frontier Foundation told me that Fair Use has a Posse!  It must protect Mr. Oswald and, for that matter, my beloved Girl Talk.”  First, let me just say that I love the phrase “Fair Use has a Posse.”  I want one of those bumper stickers.  So very awesome.  Back to the point though, what about fair use?  Most plunderphonics artists swear by it, and note that Gregg Gillis of Girl Talk still hasn’t been sued by any of the artists he’s plundered.  Originally a judicially-created exception to the rights provided in Section 106, Congress codified the fair use doctrine into the U.S. Copyright Act in 1976 (with Canada following suit in 1985 with its similar fair dealing exception).  But does the fair use doctrine protect our favorite brain-melting composer?  Well, that’s tricky.

First, the dry boring law stuff.  Section 107 of the U.S. Copyright Act states the following:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

This means you can infringe a copyright – by say, making a composition explicitly derived from a Michael Jackson song and titling it “Dab” rather than “Bad” – if you do so for the purpose of criticism, comment, news reporting, teaching, scholarship or research.  That’s pretty vague, especially considering the Supreme Court has since added parody to the list of potentially protected types of fair use.  But the Supreme Court has also said that a work need not necessarily be comment, criticism, news reporting, teaching, scholarship, research, parody or even at all transformative to be fair use.  Confused yet?  You probably should be.  Judges certainly are.  So in Section 107, Congress also gave us four factors to consider when deciding if fair use protects an alleged copyright infringer, regardless of whether the work cleanly falls into one of the enumerated categories:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -”

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Does “Dab” get past these hurdles?  Oswald could no doubt intelligently explain how his use of “Bad” results in a transformative work, rather than merely superseding the original.  But “Dab” is also a commercial product, as Oswald often sells his Plunderphonics tracks to the public.  Moreover, as with all Plunderphonics tracks, Oswald made “Dab” from large chunks of “Bad” and, importantly to the law, doesn’t even add his own sounds.  He ‘just’ reorganizes or manipulates the original sounds, resulting in music made up of entirely verbatim pieces of the copyrighted material.  For the same reason, “Dab” could at least arguably take a bite out of any licensed remixes of “Bad,” themselves derivatives of the original.

So would a court consider Oswald, if sued by one of the hundreds of artists he’s recontextualized, a fair use sheep or an infringing goat?  Well, it’s still largely up to the judge – maybe Oswald gets a progressive judge, or one that loved to play with the speed of his/her record player as a kid.  Point being, it would likely come down to how much weight the trial judge ascribes to the transformative nature of Oswald’s music.  If the judge ‘gets’ Oswald’s points about the benefit and merit of his work, then he may very well win.  Oswald is also a rather sympathetic defendant given the clear artistic nature of Plunderphonics and his status in the art world, and these days he would likely have a cadre of pro bono attorneys jumping to defend him.  These are likely the reasons why he hasn’t been sued since Michael Jackson’s attorneys attacked, but, while I intend no disrespect to Oswald’s ability to articulate, I would still guess more often than not that copyright law considers him an infringing goat.*  A court would be going out on a ledge to rule in his favor.

* One exception might be Oswald’s monstrous twenty-minute masterpiece, Plexure.  Unlike nearly all of his other Plunderphonics works, which typically recontextualize the music of only one or two artists, Plexure revisits the work of hundreds, if not thousands, of popular artists from the early days of the compact disc (i.e. 1984-1994).  The samples in Plexure are so dense and fly by at such a rapid pace that even U2′s battery of lawyers that sued Negativland would have a hard time arguing that Plexure has any impact whatsoever on U2′s otherwise meager financial prospects.

But Oswald has a response on behalf of all the infringing goats:  overhaul the fair use doctrine entirely.  In “Plunderphonics, or Audio Piracy as a Compositional Prerogative,” Oswald notes that “[m]usical language has an extensive repertoire of punctuation devices but nothing equivalent to literature’s ” ” quotation marks.”  Therefore, quoting Milton to argue that music can only be called plagiarism or piracy “if it is not bettered by the borrower,” Oswald proposes the following definition of fair use:  artistic expression that infringes on another’s copyrighted material is fair use if it 1) makes for a different expression from the original; and 2) gives credit to the original.  To put another way, you can’t just make wholesale copies a prior work, but you can rework it to make a distinct work, musical or otherwise, so long as you give credit where credit is due.

There’s a certain ridiculous obviousness to Oswald’s point of view – mostly because this is the method commonly used throughout the literary world.  Graduate students around the country take the exact words of those who came before them in order to argue a point separate from the prior scholar.  While some might argue that graduate students deserve protection because they write their theses in an educational setting for reasons other than direct profit, my response, and I’m guessing Oswald’s, would be that the majority only write their theses as a means to receiving a degree which will presumably make them more attractive on the job market.  Why do we permit a graduate student’s warmed over critique of the universal themes in Slaughterhouse Five, but wag our fingers at Oswald’s innovative and deeply complex critique of popular music?

So if Oswald’s theory makes so much sense, why haven’t the laws changed?  It comes down to a familiar reason:  money. It’s not easy to come by the muscle in this power dynamic to lobby Congress or to seek better judicial interpretations by way of defending lawsuits.  If you receive a cease and desist letter demanding that you refrain from trampling Roy Orbison’s copyright, well, unless you have Luke Skyywalker money* to pay for legal representation during what will be a lengthy court battle, you put your tail between your legs and meekly respond “yes, sir.”  As a result, the fair use doctrine is rarely tested in Court, and The Grey Album is pulled from circulation (though again, thank you internet).

* See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).  No really, take a look.  It’s hilarious.  The U.S. Supreme Court held that 2 Live Crew’s immaturely vulgar use of Orbison’s beloved classic “Oh, Pretty Woman” was a parody protected by the fair use doctrine.  I love it when the Supreme Court feels it has to rule in favor a party they clearly loathe.

Legal or not, John Oswald’s Plunderphonics project is fascinating.  Know that and give it a listen.  This terribly professional pop-culture obsessed music reviewer/lawyer gives it his top endorsement.  Rereading this article, I realize that I only scratched the surface of Oswald’s bizarrely disturbing, and yet hilarious, cover art that sent Michael Jackson, unsurprisingly, into a tizzy.  That can wait until a later rumination on rights of publicity, invasion of privacy and moral rights.  But look, all you really need to know is this:  Mr. Jackson wasn’t truly Bad until John Oswald was his (illegitimate) producer.