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A letter from the recording industry

Date: Wed, 18 Feb 98 09:49:00 -0800
From: "McPherson, Brian" <bmcphers@rmslaw.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

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.


P.S. Please forward this letter to BMG attorney Peter Brodsky. We don't have his e-mail address.

[ 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



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.


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
[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,

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>

May 8, 1998

Illegal Art


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.  


Susan Hilderley

Last updated:
10 February 2001
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