Four score and seven years ago our fathers brought forth on this continent, a new controversy, conceived in artistic freedom, and dedicated to the proposition that all arts are created equal. Now we are engaged in a great court battle, testing whether that artist, or any artist so conceived and so dedicated, can long endure.

Marcel Duchamp described a method of creating art by the act of “selection” of existing materials to create original art. While admitting his selections did not originate from him, his resulting works are based on manipulations and “re-contextualizing” of his selections. Using a similar concept, a band called Negativeland has created original musical works of art using composites of other peoples’ words and music.

Negativeland has been forced to legally defend the art it creates. The central issue appears between the protection of “intellectual property” versus the rights of “artistic freedoms of expression”. But, this is not simply a black-and-white issue, and the gray areas of this case may never be fully resolved.

In their paper “Fair Use”, Negativeland delves into this massive gray area by attempting to define the difference between blatant theft and creative use of existing material to generate an original piece. They propose that “fragments” defined as “less than whole” be allowed so long as the new piece is not indeed a “copy” of the original work.

Negativeland asks the question, ‘Do artists, for profit or not, have the right to freely “sample” from an already “created” electronic environment that surrounds them for use in their own work.’

Negativeland answers the question, at least in their own minds, with their discussion of fragments versus whole usage, and they propose the “Fair Use” doctrine be expanded to allow “partial use for any reason”. They demand complete artistic freedom to use any fragment in any way they choose without legal and financial burdens. It is important to note that they are against stealing entire works of art, bootlegging and other forms of improper profit.

Negativeland further suggests that owners of original works can challenge the validity of works using samples of their material. In such a case, an independent listener could easily determine whether the work is original art or a rip-off. Although this idea makes good sense, it would entail regulation and a method to monitor disputes. This approach could open up an entire new set of legal challenges, padding the pockets of lawyers rather than of artists.

So, we find ourselves back at “square one” in this case. All of the arts, including music, require creativity and space for artists to create. We don’t need additional laws, regulations, governing boards and official committees. It is important that the arts be supported in an encouraging manner, rather than a restricting one.

Perhaps reason will prevail, and original thinkers such as Duchamp and Negativeland, will be free to produce their art without restrictions in the future. After all, we are all the beneficiaries of such creative endeavors. To once again borrow from the honorable president Lincoln: We here highly resolve that these artists shall not have been sued in vain – that this Global-Community, under All, shall have a new birth of freedom – and that a reasonable government of the people, by the people, for the people, shall not perish from the earth.

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