1991 was a great year for some pretty major albums. Nirvana, Pearl Jam, Red Hot Chili Peppers, Guns N’ Roses, REM, Metallica, Smashing Pumpkins and Soundgarden were a few artists with big releases that year.
U2 also had a huge release that year. Their album Achtung Baby was one of the most highly anticipated albums of the year, coming out on November 18, 1991. Some U2 fans and record stores thought U2 had dropped the album earlier in the year but as it turned out, one band beat U2 to the punch and created a legal nightmare for themselves.
“If your name is Negativland, you get your ass sued by U2.” – Wired Magazine
Negativland, up to this point in their career, had never sold more than 15,000 copies on any of their prior releases. As Wired Magazine put it in 1995, “What happens when your art consists of sampling other people’s work? If your name is Negativland, you get your ass sued by U2.”
Negativland were an obscure experimental group whose origins date back to the late 70’s. They were notorious for being staunch advocates of fair use doctrine, which basically allows you to take someone else’s copyrighted work and transform it in some way, whether it’s sampling music, parody, criticism or providing education. There is no actual law called fair use, but rather it’s a defense used in court.
While Negativland released many albums in their career, there was one release in particular that caught the attention of U2 and resulted in a very expensive legal battle.
Casey Kasem Rant Disparages U2
By 1987, Negativland had built up a following when they released their album Escape From Noise. Four years later, they were given a tape of radio personality Casey Kasem who was best known for hosting America’s Top 40 radio program. The tape consisted of Kasem berating his engineer by yelling profanities at him and disparaging the Irish band U2. This was before the days of the internet, so tapes like this were pretty rare.
Negativland, up to this point in their career, had never sold more than 15,000 copies on any of their prior releases. The band thought they should do something with the Casey Kasim tapes and mix in U2’s music. Given how big U2 was, they surely would attract more attention this time around.
“…It just became appropriate because we got these Casey Kasem tapes mentioning U2.” – Don Joyce, Negativland
Negativland Member Don Joyce recalled, “The bulk of appropriated material on our earlier releases was from fairly obscure stuff, and U2 marked the first time we had ever taken on pop music. It wasn’t even something that attracted us, but it just became appropriate because we got these Casey Kasem tapes mentioning U2. It’s nothing we’d have chosen to do otherwise.”
Negativland put out a single 3 months ahead of Achtung Baby in August of 1991, on it’s label SST Records. The cover had the word U2 in large letters with a U-2 spy plane and the band’s name in small letters.
The single would feature parodies of u2’s well known 1987 song, “I Still Haven’t Found What I’m Looking For”. It included kazoos and extensive sampling of the original track. It would also be mixed with DJ Casey Kasem’s rant.
U2 had 2 massive releases towards the end of the 80’s with 1987s, The Joshua Tree and 1988’s, Rattle and Hum. Fans were eagerly anticipating what the band had in store to kick off the 90’s.
“Negativland’s always been interested in creating that kind of moment of ‘What? What is This’ or ‘They Can’t Do That, But They Are, How’s This Possible.'” – Mark Hossler, Negativland
Mark Hossler of Negativland explained what happened after the band released their infamous U2 single, “Side 1 was a cover version of the U2 song, “I Still Haven’t Found What I’m Looking For”. We had a sort of dramatic reading of the lyrics by a member of the group, David, also known as The Weatherman who kind of butchered Bono’s lyrics and altered them.
We used a 30-second chunk of the U2 song as the beginning intro… There’s bad words in this and they didn’t like that either, but the final thing that really brought it to the attention of Island Records that really made them decide to nail our asses was that we ended up making the record look like this.
It looks like a new album from U2 that’s called Negativland and we liked the idea that you put this in a record store and people are confused… Negativland’s always been interested in creating that kind of moment of ‘What? What is This’ or ‘They Can’t Do That, But They Are, How’s This Possible.’ We’ve been able to do that a few different times in our career and it’s very thrilling to get to do.
We also assumed people would figure it out, but never underestimate the inattentiveness of the average American because it turned out that places like Tower Records was putting up entire window displays of this record when it was coming out, thinking it was the new U2 album.”
Legal Precedence for Music Sampling
By 1991, there already were court cases dealing with how sampling of music was to be handled from a financial and compensational point of view. There was one case in particular which had set a precedent for how future litigation would be handled. Musicians who sample another artist’s song would have to pay licensing, publishing and mechanical fees, which could amount to hundreds of thousands of dollars.
Negativland is Sued by U2 and Island Records
A few weeks after Negativland’s U2 release came out, they were hit with a 200-page lawsuit by both U2 and their label, Island Records. The lawsuit alleged the band and their label were guilty of copyright infringement, trademark infringement and fraud, as well as defamation of character because of the profanity in their single.
The lawsuit claimed that placing the word “U2” on the cover violated trademark law, as did the song itself. Island Records also claimed that the single was an attempt to deliberately confuse U2 fans awaiting the impending release of Achtung Baby.
As part of their lawsuit, Island Records demanded that every copy of the U2 single and any and all promotional materials be turned over to them and destroyed, in addition to the copyright being assigned to them as well.
In one month, Negativland and their label stood to lose an estimated US$70,000, which was more than Negativland had made in 11 years as a band.
“It felt, to me, like my child had been kidnapped.” – Mark Hosler
The group did have a fair use defense on their side to justify their actions, but the lawsuit would have likely dragged on for years and bled the band and their label dry. Hosler told Wired Magazine, “It felt, to me, like my child had been kidnapped.”
The band was pressured by their label to settle out of court, which is what they did. Wired Magazine summed it up perfectly, saying, “Negativland couldn’t afford to prove themselves innocent.” The lawsuit resulted in the band being dropped from their label.
Mondo 2000 Interview with The Edge
In June of 1992, the magazine Mondo 2000 was going to do an interview with the guitarist from U2, The Edge over the phone, to promote the band’s Zoo TV Tour. Unbeknownst to The Edge, the members of Negativland were friends with the editor of the magazine who happened to invite two members of the band to sit in on the phone call.
The members of Negativland revealed their identity to The Edge halfway through the interview. It would be ironic that U2’s Zoo TV tour featured sounds and live sampling from mass media outlets and Negativland knew this.
They would spend a lot of their interview with The Edge asking about his ideas about the use of sampling on their new tour and the legality of using copyrighted material without permission. The Edge claimed that U2 didn’t agree with the aggressive legal approach that their label had enacted and that the band had advocated for Negativland to their label, but it fell on deaf ears.
Fair Use, The Letter U and the Numeral 2
The members of Negativland chronicled the whole ordeal with U2 and their label in a magazine and CD release called Fair Use, The Letter U and the Numeral 2, however, the group wasn’t done just yet with litigation. The members were sued by their own label, SST Records, who wanted to recover their legal fees.
Casey Kasem never sued Negativland, but he did, at one point, threaten legal action if the U2 single ever came to light again. Kasem was also critical of Negativland’s work.
The members of Negativland urged their fans to get in contact with the radio DJ to defend the group. That’s when the FBI got involved. Apparently one fan threatened Kasem over the phone, despite the fact that the band never gave out his phone number.
A documentary was made about the whole ordeal called Sonic Outlaws.
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