Predicated on the constitutional clauses protecting free speech, American fair use laws allow for the limited appropriation of copyrighted materials without citation, credit or royalties paid. Like, say, if a particular DJ wanted to compile three bestselling albums out of nothing but samples lifted from other artists without permission. If such a person existed, he would find a welcome home on the Illegal Art (IA) label, famous for its liberal interpretation of fair use legislation. Though certain interested parties in the musical community might disagree, Philo T. Farnsworth, the enigmatic head of IA, insists that Illegal Art really shouldn't be illegal, despite the name.
Fast Forward: What laws, exactly, allow you to get legal distribution within the United States?
Philo Farnsworth: Fair use — and we claim fair use with everything we put out — it puts us in a legal grey area. And as long as we remain in that grey area, there's going to be someone who's willing to take a risk and distribute it.
FFWD: Is it just music? In a number of other mediums, appropriation of other people's work wouldn't fly for very long. If you cut up movie clips into something new, people would probably call that illegal. What allows you to get around that with music specifically?
PF: I think there's a lot of parallels with YouTube and things that are happening on the Internet — what they call Web 2.0. It's a very participatory culture. That's what we're encouraging — artists being able to appropriate from the larger culture and express themselves, but we probably have higher standards than a lot of Web 2.0 material that's out there.
FFWD: What do you think it is about popular art that changes that? How is painting a soup can to make a comment on consumer art different from what Greg Gillis (a.k.a. mash-up artist Girl Talk) does?
PF: Well, I think the visual arts and the gallery scene is a lot more forgiving of appropriation. It's a cultural thing. (Andy Warhol and Campbell's soup were) operating on different markets. We're disseminating and distributing things in the same way that works we're appropriating are disseminated. So that creates more friction, and it creates more questions.
FFWD: If you had the choice, how would you like to see fair use defined legally?
PF: If you create a parody, you have a strong defense. Parody comments very directly on the original. It holds it up for ridicule and mocks it in a way. What hasn't been clearly protected is what they call transformative use — what I would define as altering the original enough in order to create something new. The biggest question is “how transformative does it have to be?”
Personally, I'd prefer to err on the side of allowing artists to do more rather than less. The fourth factor of fair use would be the best measuring stick to me — the impact that it has on the market of the original. I think it would be a bit of a stretch to say if one of our artists invoked Lionel Ritchie, that's going to harm his potential sales. I think that's a good way of defining what's fair transformative use.
FFWD: It seems to me that the grey area is a comfortable place for Illegal Art to operate within. Do you prefer it?
PF: No. I'd love someone to say it's completely OK to do this.
FFWD: But that would remove the check on how much you could appropriate.
PF: Well, we don't want to completely eliminate copyright protection. We've never argued for that extreme. We're very interested in artist's rights. In fact, that's what we're fighting for.
FFWD: With the Recording Industry Association of America (RIAA) winning a file sharing suit against Jammie Thomas (a 30-year-old from Minnesota who was fined over $200,000 for having 24 songs in her Kazaa shared folder) and setting a precedent for file sharing cases, do you see Illegal Art reacting in any way?
PF: These things are happening all the time. Whenever the RIAA does anything, it sends a chill down the industry's spine. Another example is what happened to DJ Drama a couple years ago — he's a producer of hip hop mix tapes. The RIAA went after him, and there were actually people in the industry who thought that was absurd. So they represent the industry, but there are people within the industry who disagree with what they're doing.
FFWD: Finally, how important is the rebellion aspect of IA in light of this? Is the illegal element more important than the art?
PF: No, no. At the end of the day, we just want artists to be able to express themselves. If something did pass through Congress that made it easier for us, that would be a victory, not something to bemoan and go, “Oh, we've lost our edge.” We play that up as a marketing technique, definitely, but if there was no longer a need for a label to represent this niche, that would be perfectly fine. We're not trying to fight the system. We're just interested in the development of culture and art.
