One great example of the importance of fair use to the First Amendment is about the band Negativland and their fight with the music industry over a parody of U2’s song “I Still Haven’t Found What I’m Looking for.” Negativland is an experimental band known for its use of music collage, combining portions of other songs, speech and “found” elements of sound (like a running vacuum cleaner) with their own music to make a statement about the cultural industry. They are satirical, and they pushed the fair use envelope.
In 1991, a huge ruckus started when Negativland issued its extended play CD entitled U2. The long legal battle from the restraining order issued by Island Records and Warner/Chappell music publishers “citing deceptive packaging, copyright infringement and image defamation” to a final out of court settlement is documented in a book by Negativland, Fair Use: The Story of the Letter U and the Numeral 2. Negativland and others riffed on “who owns the letter U and numeral 2?” noting that the real U2 (the band) took their name from U-2, the high attitude surveillance aircraft that was shot down and led to a US intelligence cover-up.
Richard Gehr of Spin magazine called U2 as one the top ten albums of the year, even though most copies of the CD had been impounded. Gehr said “It took a court order to suppress what is quite possibly the most truly subversive rock record ever made. But having attracted the litigious wrath of U2’s recording and publishing companies, Negativland’s snarky and brilliant multileveled take off on Christian liberals, “I Still Haven’t Found What I’m Looking For” — with foulmouthed Casey Kasem samples, a bone-headed Bono interview, and a ditzy disco version — proved again that the price of artistic freedom can be hefty legal fees.” The band U2 had no say in the matter, and “The Edge” said that the parody might be a good B side to their record. Casey Kasem, DJ of America’s Top Forty was not pleased that his meltdown and resulting swearing rant – previously recorded by music engineers during a Top Forty rehearsal—was included in the song. Unfortunately, Casey Kasem started to receive threatening phone calls that were attributed to the fans of Negativland.
All of this occurred before, during and after the Supreme Court ruling on Campbell v. Acuff-Rose Music and its focus on parody and transformative fair use, and so much has happened since then. In the early 90s, people were just getting use to personal computers. It was a time when people pulled out the rolling ball on their computer mouses and snapped it back in place because it was thought to improve performance. It was the time when the general public started to think about copyright and ask their librarians about fair use. Now we have so many people and groups interested in fair use that we have to have a Fair use/Fair dealing week.