About a month ago we interviewed mashup artist Girl Talk, who has received a lot of positive attention lately for the way his albums, Night Ripper and Feed the Animals, combine samples of a gazillion pop songs to create his own booty shaking mix of socio-emotional commentary. But this way of creating music has landed Gregg Gillis in the courtroom and in Senate committee hearings, as well as in sold out sweaty venues.

Mark Hosler knows a thing or two about the complications of sampling copyrighted material, as his band Negativland ended up in a draining legal battle in the early 1990s concerning their (out of print) EP, U2.

Negativland has been releasing their sonic collages since the late 1970s, long before Gillis made it popular and danceable. Negativland's aspirations were less about infiltrating the mainstream than commenting on it. Top 40 radio, former presidents and unapologetic commercialism are just a few of the topics which have come under Negativland's scrutiny over the past few decades. Not surprisingly, Hosler and co. are huge proponents of appropriating surrounding media to create new works of art, whether mashup soundtracks or YouTube videos. When Hosler came into town last week (prior to the election) to speak with Senate and judiciary committees on this issue, DCist got the opportunity to sit down with him and discuss his thoughts on the RIAA and music industry heavy hitters, how digital distribution has hurt consumption of Negativland's older material, and why he doesn't like Pitchforkmedia.com.

Photo from Negativland's MySpace page

What specifically brought you to D.C. to meet with various Senate Committees?

As you know, we’ve been appropriating and sampling things for 28 years, before samplers existed and before anyone even used that word. We’ve been using little bits and pieces of copyrighted material cut up and rearranged in our own work, and gotten in some big trouble for doing that and were sued twice for copyright infringement. Beginning in the early '90s we started speaking out publicly about how and why we saw this approach to creating new work, using bits and pieces of the media that are all around you, and why this is a totally legitimate art practice, one that in the fine art world goes all the way back to the turn of the last century - people attaching found things to paintings and stuff like that.

Anyway, we’ve always very strongly felt that we don’t need to ask permission to use these things because we’re bombarded by media everywhere we go. It’s simply part of the world we live in. And we didn’t feel that anyone should be suing us to shut us down because we’re not hurting anyone by doing this type of work. I think that that argument for a lot of people out there, especially younger people, I think makes a lot more sense these days than it ever did, ‘cause so many people are doing cutups and collage and making things using bits and pieces of media and putting them up on YouTube and making music and all that. It’s becoming very mainstream now, but for someone who lives in the world of Capitol Hill, they may not know about all this very much.

In the last few years there’s an intellectual property and fair use advocacy group that was started by the Consumer Electronics Association, they funded it, and this group’s called Digital Freedom or the Digital Freedom Campaign. Now, given the world that Negativland comes from, the CEA is not the sort of organization I am used to dealing with directly. They represent Apple, Microsoft, Sony, Verizon, Google, Yahoo, Dell, Panasonic, etc.,etc. All these huge companies. But oddly enough, they actually do understand these issues of fair use from a pretty surprisingly progressive viewpoint. And they decided, I think the CEA thought, “we need to have a group that’s educating the public, politicians, college students, etc. around issues of fair use and access to stuff," so they created Digital Freedom primarily because the CEA represents all the people who make the hardware, who make all the techno gadgets we use to play all our 1s and 0s with, and what you basically have is this battle that has erupted between the people who make the digital hardware and the people who make the digital content.

And so you have these strange legal fights between, say, Apple and Disney. You know, 'cause Apple customers like using iTunes and their laptops and iPods much better when they can get a hold of movies and music and port them from device to device and do whatever they want with them and not have it be so copy protected and limited. Whereas the people who own the content, at least at the corporate level, the big business level, those folks really want to see as much copy protection as possible and see things be as limited for the consumer as possible. So this gets into these issues of fair use in copyright.

Now, Negativland isn’t as interested in that on a hardware level. I mean, we follow it, we’re interested, but it’s not our primary concern because we’re trying to actually make stuff. And our concern is not about whether or not businesses can sell you more mp3 players and more laptop computers. For us, we're more concerned about issues of freedom of expression and free speech and wanting to see art evolve in the direction that it wants to go in.

You know, as a musician or artist or film maker, no one wants to be making music or art and worrying about what a lawyer thinks about your work. It’s just totally absurd. That’s no way to be creative. That’s kind of where we’re at, the kind of work we’re doing, and at this point millions of people are doing this sort of thing, whether they think of it as art or not. No one wants to sit around worrying about how you might be a copyright criminal because you’re making collage art. So that kind of situation to us just seems pretty silly. The user practices in this country are way ahead of where the laws are. Anyway, so the Digital Freedom Campaign invited Negativland to be on their artist advisory board about a year ago, and they said at some point we’d like to bring you around to Capitol Hill and meet with some of the people there about this different kind of work that you do and the kind of work that, as I said, is now becoming really, really mainstream.

So this is, for me, kind of an amazing moment. On the one hand, I’m very dubious about the whole corporate big business world and our whole system of government and our whole system of laws and everything, having been through what I’ve been through with being sued and all that, I certainly have a lot of problems with the system of government and laws that we’ve created in this country. 'Cause it doesn’t seem to work very well. It's completely tilted to favor the people with the most money, and always has been. It’s nowhere remotely near being a level playing field. But, still, to have to chance to go in and talk to the staff of different senators, congressmen, judiciary committees, and House subcommittees who do want to hear more about these issues, I certainly wasn’t going to pass up that chance.

If I remember correctly, you told me you were meeting with people on both ends of the political spectrum. Is that something that surprised you?

It sure did. In fact, I would say that we mostly met with Republicans and I was quite surprised by that. Now that I think about it, I shouldn’t have been, but I don’t really hang out with Republicans. It's not often that I've had to explain our music to people who come from that very conservative mindset. But if you look at what passes for a lot of Republicans these days in modern America, nowadays it's often a neo-con. It’s hardly a true conservative in any way at all. Heck, what passes for being a Democrat these days is basically the equivalent of a centrist Republican from 30 years ago.

A true conservative would be conserving the environment and protecting things. A true conservative would not allow something like Guantanomo Bay to exist. A true conservative would not be authorizing these secret courts and these wire taps and taking away our constitutional rights. So I think the Republicans whose staff I was meeting with, I think that the reason they’re open to some of these ideas about how people can use these devices and how people can create this kind of art work, I think it’s because they are leaning more towards being a conservative in the true classic historical sense, and bit on the libertarian side, as well. Does that make sense?

Yes, I understand.

But it did totally throw me for a loop. I mean, the first meeting I had was with Senator Brownback’s office who I knew of, as a friend of mine, Thomas Frank, wrote the book What’s the Matter With Kansas? So I've read all about this guy and was like, "Oh my gosh. Wow. This guy is very, very conservative." But perhaps I should make alliances where I can? I don't know.

If it’s surrounding us every day, how much of this original artwork do you believe could be considered public domain?

In my opinion, it effectively is the public domain. It may not be from a lawyer’s standpoint, but as far as I’m concerned…did anybody ask you about whether you wanted to see Starbucks logos everywhere you go and ads for Nike and Pepsi and Christina Aguilera pop songs blasting out from the radio, and there’s music playing in the background almost everywhere you go, everywhere you shop, everywhere you eat, everywhere we are in public? When you’re pumping gas, the gas station has a country western station playing over the speaker system. I mean, you’re just completely drowning in this media. And at the same time that that’s happening, we’ve all been sold all of these devices. They were happy to sell it to us, these digital devices that also happen to be capturing technologies. They want us to consume their music and their movies in digital formats that happen to be basically the same as the original, but that's it. Just consume, don't capture, don't create.

It’s a great irony that if you follow the history of the compact disc, the compact disc did not become popular because that’s what the public was clamoring for. That’s a lie. The compact disc became popular because the industry wanted it to be, they forced it upon people. What actually happened was that the big record distributors would sell vinyl to record stores and you always had a return policy so if you didn’t sell your records you could return them to the record distributor. And that allowed record stores to try out things, right, to carry a larger back catalogue of stuff. Well somewhere in ’89-’90, somewhere in there, maybe ’88-’89, the record labels all simultaneously, almost as if they all planned it, they all announced that they would no longer accept returns on vinyl but they would accept returns on CD. So, if you’re a record store, what choice do you have? You can’t afford to take that financial risk. And so, really, with that change in the return policy, that really forced CDs into the market place. But what I think is incredibly, fantastically, deliciously and hilariously ironic is that the record labels' greed inadvertently created their own undoing. Because what they were doing was selling all of us digital master copies of all of their records. It’s like, “Oops.”

Do you therefore wonder whether people who are screaming for copyright protection care about what the artists that they’re representing actually make?

I don’t think there’s any one answer to that. I think that for some of them, they brought out Sheryl Crow in one of their hearings to say, “Hey look, she represents all these poor artists.” In fact, I made that point when I was in Capitol Hill. I had eight different meetings that day and you know I said, “When the RIAA brings in a big rock star here to kind of dazzle you and tell you about how terrible all these things are, and about all the problems with new technologies and copyright, sharing and downloading, and when they say they represent musicians everywhere, it’s not true. It’s simply not true." They represent maybe 2 percent of the people who are making music.

Was it the RIAA who sued you in the case of the U2 EP?

No, it wasn’t, we were sued by U2’s record label and by their publisher. Many years later we had a pressing plant refuse to press some of our work because of copyrighted elements on it. And the reason they refused is because they were concerned about new guidelines issued by the RIAA. And we actually did do some publicity around that and we actually did get the RIAA to amend their guidelines to CD plants to at least acknowledge that just because you used somebody else’s intellectual property in your music, it’s not automatically an infringement. It may be fair use. Their guidelines used to say it was automatically copyright infringement and if you pressed someone’s CD, you could be guilty of contributory infringement and be sued and lose thousands of dollars, hundreds of thousands of dollars. That was about ten years ago, we did manage to get the RIAA to amend their guidelines but I don’t know how much it really helped though. But it was a small something.

I’m curious on your thoughts on digital distribution, because I’ve noticed with Negativland packaging, it’s very elaborate. You care very much about what you’re putting on the covers and there’s been more than one album with 35-40 page booklets.

We’ve had CDs that came with whoopee cushions, baggies of lawn clippings, moist towlettes, keychains, posters, stickers. We’ve made all kinds of stuff. It’s always very conceptually related to the record.

Is that something that with more digital distribution, you’re expecting not to do it much anymore? Or do you think more artists are starting to do some more conceptual ideas with their packaging so that they can sell those physical objects as well as the digital copies?

That’s a good question. That’s something I actually think about a lot. We’ve always been doing unusual packaging. Our first record came out in 1980 and every single copy was one of a kind, handmade. And over the years we made 15,000 of that first release, and every single one of those 15,000 was a unique record cover. And I’ve seen, especially in the experimental world, there’s loads of unusual ways people have packaged. My friend who does the Evolution Control Committee, he packaged one of his CD releases so that it came inside of a inside of a floppy disc drive for a computer. There’s all kinds of kooky things. People have packaged stuff inside of wooden boxes and strange metal shaped things and bubble wrap and all kinds of crazy stuff. For us, the packaging has always been integral to the work, and the audio work itself is always conceptual. We hope that people listen to it from beginning to end. It’s meant to be taken in as a whole thing where I think the sum is greater than its parts.

What’s happening in the digital world is of course many people are listening to music on shuffle play. It reduces an album to just a bunch of singles. For a lot of music that might be fine. As much as I’m in favor of, and as much as I love all these new technologies, I love all these new ways people can create work, people can distribute work, it also turns out, ironically enough, for Negativland, it utterly destroys our records. You don’t get the cool packaging. You have no idea if you download a copy of Death Sentences of the Polished and Structurally Weak you don’t know that it comes with a 5x11, 36 page booklet with all these pictures of cars and wrecking yards and it’s packaged in a die-cut 5x11 sleeve that looks like some cool thing that would be in your glove box of your car. All you know is the CD. So you’re missing out, literally. That particular CD is sort of the soundtrack to the book, so you don’t even understand what you’ve just downloaded.

I imagine there’s also a bit of a monetary frustration in that as well, as far as the cost of making elaborate packaging what with fewer people buying the physical form.

Right. Well, they’re expensive to do, that’s for sure.

Although it does sound like it’s a concern, but it’s a secondary one?

Here’s another way that I look at it. Let’s just pretend that the Internet doesn’t exist, that there’s no way to download music at all, right. You still have to just buy records. Well, the number of records that were actually released on the entire planet Earth each year in the early 90s was about 30,000. In this new millennium, the number of records coming out every year on the entire planet is about 300,000. And that’s because digital technology has democratized the whole means of the production of art and culture. It means that punk rock kind of won. Punk rock won. That was one of the ideals of punk rock, that, hey you don’t have to be an expert musician to make music. Anyone can put out a record, anyone can put out a single, or a magazine. With laptop computers and all that, anyone can have a half a million dollar recording studio in their laptop. And it’s lowered the bar unbelievably as to what it takes to actually create and record and distribute and manufacture your own music.

So if you’re putting out some sort of weird, experimental, interesting unusual music in 1990 and you’re one in 30,000 trying to get someone’s attention, that’s a heck of a lot easier than if you’re one in 300,000 in 2008. So just the sheer volume, the sheer numbers, the sheer amount of music that’s coming out while everyone only has so much time. How much time in a day do you have to listen to all these records? I mean you’re a music critic. I don’t know how much you’ve been listening to music you’re whole life, but how can you even keep up with the amount of stuff coming out? And then if you’re thinking to buy it, how can you afford to buy one tiny percent of the incredible amazing music that’s coming out every day.

So if you’re an independent artist, you’re sort of competing for a smaller and smaller slice of this pie. Because people only have so much money to spend, so much time to spend, and now you’ve got so much music for free. There’s far too much music to listen to, there’s far too much than you could ever pay for so it’s understandable that people would be inclined to say well, I can never really afford to pay for that but I would like to hear it so if I can download it or if somebody gives me a bunch of files, then I’ll do it.

Do you have any thoughts on music bloggers?

Can you be more specific? You mean specifically blogging or people writing about music in general?

I was thinking more along the lines of the large volume of people who are fans of music who are in some cases putting out their own criticisms and in some cases, being the ones to distribute the mp3s.

Until he recently retired, Richard Harrington of the Washington Post wrote over 5,000 music reviews and articles, and he’s a nationally and internationally known music critic. In the past you might want to read a Richard Harrington review because that’s who wrote it. There’s almost a brand that certain music critics had, and you’re interested. What does Greil Marcus say about this Bob Dylan reissue? But I think that that’s completely disappearing because there’s just thousands of people who all have their own opinions and they’re putting it out there on the web. So I think you might go to, say, to Pitchfork, but you go to Pitchfork, probably not to read a particular reviewer. You’re probably just going there to read what Pitchfork has to say. So that’s a shifting, changing thing. It means that those expert music critics who were well-paid and worked for mainstream newspapers are recently probably out of a job.

Speaking of Pitchfork, I’ve never cared too much for a lot of their criticism because it always seemed sort of dishonest. It just seems like the Pitchfork schtick is to be snarky and nasty and kind of insulting and kind of take apart the music. It’s so frequent that clearly it’s an editorial policy. That’s what they want their writers to do. So you don’t get the feeling their writers are honestly assessing the music and telling us what they think, it’s kind of the writers writing in the style that is going to sell to Pitchfork. That’s why I don’t pay attention to what they have to say, unfortunately. I know they’re very very popular, though.