The Second Circuit Defines "Interactive" Digital Radio

This is a legal article adapted from a presentation I gave to the Copyright and Literary Property Committee of the NYC Bar on October 21, 2009. It's a little lengthy for a blog post, so here's a link to the article, and to the court decision discussed in it. We are still in the process of hooking it up to my firm's website.

Stuart Sherman = Stuart Sherman as Stuart Sherman → Stuart Sherman

The following is an essay I recently wrote for a catalogue accompanying an upcoming exhibition entitled Stuart Sherman: Nothing Up My Sleeve, curated by Jonathan Berger at PARTICIPANT Inc. Gallery, 253 East Houston Street, NYC, running November 8 - December 20, 2009. See recent Art In America piece. (I am also - not so incidentally - the executor of Stuart Sherman's estate.)

I.

If you ever asked Stuart Sherman who “influenced” him, you’d get a boring answer, because it’s a boring question. He had a stock answer ready, anyway, of course: Magritte. I’m sure that was a good enough answer for most of the people who asked him that question, but I always thought he was just trying to be polite to them. I found that I got a better answer if I simply asked him whose work he liked, and sometimes an even better answer – a surprising one – when I asked him whose work he didn’t like. For instance, his frank distaste for Marcel Duchamp interested me a lot more than his claimed affinity for Magritte. It meant I had to think a lot harder about both Duchamp and Magritte, and even harder about Stuart himself.

One reason I believe Stuart and I became friends and (luckily) remained so until he died was that although he was reasonably sure that I liked and engaged his work on its own terms, he was also fully aware that the longer and deeper my familiarity with his work grew, the less confident I was in characterizing how it worked, or why, in any generalized way, it did. The more I knew the less I understood it, because what would “understanding” it amount to? You can give anyone who has never seen any of Stuart’s work a vague sense of its effect (or “affect,” as Stuart would punningly interject) by describing a handful of his devices and motifs. But that’s no more than the ring on a coffee table left when some slob misses the coaster. You could almost say Stuart’s “career” was a series of such seemingly-accidental precipitates, look right enough in saying that much, and be completely wrong.

Stuart was a lot more trouble for all of us than that – and for himself, for that matter – because he never had a career. He was an Artist. Capital “A,” like it or lump it, and your relationship with his work shifted accordingly, or you didn’t have one. His work comprised an entire cosmology, not just some narrow range of recondite obsessions. It was a universe he mapped obsessively and tirelessly – every single day of his life. Accordingly, for someone with a well-earned reputation for self-effacing kindness and generosity, there was nothing really self-effacing about him. He knew the Deal: He was an Artist. In this world, he could declare bankruptcy (which he did, at least twice), get a grant out of the blue and spend it all making more videos. He didn’t have a career; he had daily urgent duties: “Quotidian,” as he named his erstwhile production rubric and briefly self-published magazine. Quotidian was not to say workaday; it was life snatched from creeping disorder and disaster like dialysis or insulin shots. He also knew that any number of people who thought they were Artists, too, were not. More power to them if they meant well, he might say, but they didn’t have similarly urgent assignments in their in-boxes. He rarely had reason or occasion to make that sort of distinction aloud, but if anything could be a core belief for him, I’m reasonably certain that was one.

II.

One of the most interesting conversations I ever had with Stuart about his work was also one of the last few times we met. In his last years, he was traveling most of the time while subletting his New York apartment all year round, mostly emptied of his work by then (except for one closet crammed to the top, as I discovered posthumously). When Stuart was back in New York, we would meet for lunch. When he came for dinner, he always brought a small gift. After I had my first child, the gift would be for my son.

On one of these latter occasions, I mentioned that his work often reminded me of something I’d seen in an elementary school math textbook when I was very young – in an obscure introductory section that students never bothered to look at – describing the Properties of Equality. One of them was the “Reflexive Property”:

If a = a, then a = a.

I remembered wondering what possible use such a simple-minded principle could have. And then there was the “Symmetric Property”:

If a = b, then b = a.

Only slightly more useful. Then there was the third in the series, which was called the “Transitive Property”:

If a = b, and b = c, then a = c.

Well, useful enough, but that’s all.

Twenty odd years after grade school, however, Stuart Sherman’s work brought those “obvious” principles to my mind in a different way. As soon as I mentioned the Transitive Property of Equality to Stuart, he lighted right up. “I never thought anyone ever noticed that!” he exclaimed.

What if you were that rare – or even unique – someone for whom the “=” sign was in no way a reassuring indicator that the universe ever evens out? What if making “a = b” was your job? And it was a struggle? What if it was really difficult to make a = a, let alone a = b = c? And at the same time, what if the risk of failing to make them so – and failing to demonstrate it to others – brought its own kind of existential dread for you? Stuart began each piece with no givens: as if the equivalence or equality between a, b and c was something that had to be theorized, diagrammed, constructed, proven, and won, constantly.

You can visualize this dilemma on your own.

Pick up a blank white letter-sized piece of paper. Attune yourself to the fact that you are holding and viewing, not only the said object, but also a legion of demons possessing it at the same time – including, but not limited to, (1) the name of the object, (2) the image of the object, (3) the name of the image, (4) the color of the object, (5) the shape of the object, (6) the function of the object, (7) the name of the function, (8) the image of the color and shape, and (9) the names of the color and shape – and that any of these can be substituted for, and function in the place of, any of the others. Or that the chain of associations can be broken down into separate parts, each of which may function independently. A = a = a.

Turn the piece of paper face toward you, holding it horizontally. This is a movie screen upon which is being projected a film called White Rectangle that plays continuously. A = b = a.

Keep holding the page. You are looking through a window. Since what’s visible through the window is completely white, either you are inside a room looking through the window at blinding sunlight outside, or you are outside in the night looking through this window into a room with lights on so bright you can’t make out any details. Perhaps the room inside the window is actually a movie theater you want to get into, and the movie you want to see is visible through the window as the film is projected inside the theater. The movie is called White Rectangle. The paper you are holding is your ticket for this movie. When the usher tears the ticket in two to let you in, the movie ends. A = b = c = b = a.

Welcome to Stuart’s universe. And yours.

Century XX - XXI

Yet again, I responded to a question posed in an online forum, and stuck the response here. The original question posed was from someone who had just attended a concert featuring Boulez, Messiaen and Lutosławski, and found that he couldn't talk to his friends about it.

My experience with Difficult Century XX Music began when I was about 15 or so (fyi - that’s almost three decades back) when I suddenly found myself laboring under the likely misimpression that it was the “coolest” possible thing to seek out the most challenging music I could find and see if I was up to it or whether I could stretch my ears around it over time. All I remember having to begin with, really, was a 1979 Frank Zappa interview in which he referenced Schoenberg, Stravinsky, Webern, Varese and Conlon Nancarrow. Not bad to be going on with, though. Years later, the intellectual-exercise-for-its-own-sake aspect has faded, to be supplanted by a notion of “beauty” something like the very unsentimental way art critic Dave Hickey has used the term: as a challenge to other agendas. Good music is good music, and it usually sounds good, too, no matter how challenging it is. To that end, what I’m enjoying about Century XXI is how the XX musics have already begun to differentiate themselves. I suspect it won’t be long before having Boulez, Messiaen and Lutosławski on the same program will engender cognitive dissonance. They don’t strike me as being all that similar, now. As a listener, I find Boulez’s doctrinaire serialism an awful lot like taking a beating to join the Crips, and frankly I don’t doubt that was how Boulez intended much of his music to function. I appreciate his “Pli Selon Pli” plenty when I listen hard, but only then and no more than that. On the other hand, I find much of Messiaen’s music to be beautiful without qualification. “Quartet for the End of Time” is like Miles Davis’ Kind of Blue for me – obvious in its appeal only because its means and its rigor give its unequivocal pleasures a special gravity. I’m also very fond of “From the Canyon to the Stars” and “Vingt Regards.” It’s like harder wood giving a hotter flame, when you get it going. It can also make all the earlier "classical” music that we think we understand sound even better, because what it cost its creators is made more apparent by our understanding of what it costs our contemporaries.

What Is the World Music Market?

Someone just posed this question on an on-line forum, so I'm double-dipping and putting my response here, too:

I'm not so sure it's a demographic so much as a sub-cultural inclination. The intrinsic problem with the "World Music" category is that it means music from wherever you're not. Not only does it jumble soukous together with clog dancing, qawwali, and gamelan (although we're okay with that), but also from a where-the-consumer-is-at marketing standpoint the designation turns the whole confused kaboodle into field recordings. That's a deceptively difficult threshold for people with dollars to cross. People who view "World Music" as a discrete category may dabble a bit on totems like Buena Vista Social Club (good album though it is), but unless they're well versed in a reasonably broad range of traditions on their own home turf, they're not likely to become real "consumers" of World Music, as such, because beyond distinguishing "World Music" from the familiar (read: "popular" music), they'll be ill-disposed to distinguish the various alien forms from among themselves. Nothing makes you want to buy Congolese music in quantity, for example, more than hearing enough of it to understand just how much of it there is and how radically different its practitioners are from each other. Then, what sounds like pop music in Kinshasa has more than a shot at sounding like pop music elsewhere, because you'll start hearing stuff from within the foreign context that you don't like as well as do like and you'll have some idea why. If people in the US heard soukous all the time, it would sound like pop music here, but they don't, they won't, and wishing won't make it otherwise, so it doesn't. By definition, therefore, I'd say the World Music demographic couldn't be a World Music audience only -- it would have to comprise people disposed to listen to (and buy) anything and everything. Maybe because they just can't help it, or something.

Three Memos to Self About Bob Dylan

1. Don’t write about Bob Dylan. Everything written about Dylan by anyone other than Dylan melts in the air instantly except for Greil Marcus’s 1970 review of Self Portrait, which began “What is this shit?” and included “I once said I'd buy an album of Dylan breathing hard. But I'd never said I'd buy an album of Dylan breathing softly.” That piece is currently absent from Rolling Stone’s on-line review archive. But also absent is Jann Wenner’s embarrassing apologia for Street Legal, which shortly followed Marcus’s takedown of that album. The latter review is online, but it doesn’t matter any more than Street Legal mattered. Self Portrait was a singular assault on the concept and mechanism of taste, and Marcus’s invective delineated that shock in precise terms. Addressing Dylan’s other records in normative critical fashion – good ones and unlistenable ones alike – means describing a taste concept within the framework of that concept. Dylan’s work illuminates the impracticality of this, insofar as...
2. Taste is irrelevant.
Louis Armstrong loved Guy Lombardo. Wayne Shorter loves Paul Anka. Bob Dylan loves Johnny Ray. There are more than a handful of Dylan records that define “canonical” as far as rock-ish product goes (by "consensus," or something), but classifying them that way – great, abysmal, whatever – obscures how any of the “great” ones could possibly exist. Even a casual familiarity with Dylan's public comments makes clear that his standards in music have less to do with perceived intrinsic quality than with conductivity. That's why his thefts make the music work. "Masters of War" is the same tune as "Nottamun Town," and "Rollin' and Tumblin'" on Modern Times is the same as Muddy Waters's "Rollin' and Tumblin'," right down to the tempo. But they’re not the same songs. The signifying character of Dylan’s constructs are contingent upon his indifference to concealing the thefts comprising them, or spackling originality or "self-expression" onto them. On the records that work - with odd exceptions, the early ones and the very late ones - the ready-mades and not-so-ready-mades are altered just enough, and no more, to accommodate his voice and temporal sensibility. That is also why most of Dylan's attempts to fabricate “Dylan Records” throughout the 1970s and ‘80s sound so lost and so tiresome. That's also why, whenever he does do a cover, it can make you jump like seeing a ghost.
3. His voice is really ugly for a dead guy.
I have never known a time when rock & roll was not Really Finished. I bought my first record in 1974 (a 45 of “The Bitch Is Back” off a drug store rack down the street in Yarmouth, Maine); the first Rolling Stones record I ever owned was It’s Only Rock’n Roll; and the first Dylan record I ever heard (on the radio) was “Hurricane.” My reaction to the latter, in so many pre-adolescent words, was: “If it’s by that Dylan guy, do I have to learn to like this repetitive didactic shit?” The answer was (and is) “naaaah,” but I also can’t say I took “Like a Rolling Stone” as anything other than an impersonal totem, either, at first. Liking him took work and acclimatization and, even now, Dylan remains for me the most recondite of musicians relative to his ubiquity. Even when the music is pretty, it’s pretty ugly, and for a solid decade now, his records have been really, really ugly. But this is unqualified praise. Leonard Cohen sounds like a Really Old Guy. Bob Dylan doesn’t; he sounds like a Corpse. I play “Love and Theft” as often as anything he recorded before 1970, but one of its peculiar fascinations is that I can’t imagine an actual live person singing any of these songs, let alone living the circumstances described. Yet even on the 40+-year-old nonpareil genre experiments comprising The Basement Tapes, the songs sounded inhabited. No matter how abstract the imagery or circumstances, there was no question of the “I” relating them, when there was one. The voice put Dylan there, wherever “there” was. On “Love and Theft”, Modern Times and quite a lot of Tell Tale Signs, the voice has the opposite effect. The songs are like phantoms. They’re there and we’re hearing them, but because they're delivered in that weird corpse voice, there’s nothing to reassure us that anything in this sentence is true.

Records Are For Perverts

I have a longstanding difficulty with cultural decay as a model for anything, unless I can learn something from it. Certainly, when anyone says, “All music sucks now,” I tune them out as quickly as I would tune out “Chicago X is the best album ever made. Period. Pete Cetera kicked ASS!” It’s not news that all artists, milieus and entire genres lose focus and generating principle over time (not to mention aesthetic principle), and we know how traumatic the simultaneous lessening definition of one’s cultural landmarks can be when middle age hits (I was about 18, myself). But that only means that somebody you don’t know (or like, probably) is getting all fired up somewhere, and the attendant manifestations are coded for a different audience (not you, Gramps). It’s somebody else’s pimple misery now. Well … another time for that. More pressing to those who ponder how recorded music will proceed right now is the apparent decline of the audio fetish object. Vinyl records were fetish objects; CDs work better, but they're not.

That is not to say I’m sentimental about vinyl. I buy CDs and I download (legally) at the highest resolution I can obtain. Digital music in digital formats – of course, why not? The tiny niche market for current releases pressed on vinyl is such an obvious dead end that it just depresses me to hear about. But even back in the ‘80s, the notion that everyone should replace all vinyl with CDs was such blatant snake oil that I still can’t believe how many did just that, even though keeping a working turntable now is no snap and movers curse me when they lift the record boxes. And you know what? Ask any archivist what the only durable format for audio is. Not most durable: only. All digital formats – discs and hard drives, both – fail eventually. Digital failure doesn’t mean increased background noise; it means unplayable music. So, all of our non-vinyl music will have to migrate ahead of that obsolescence. Or we can just buy it again. (Right?) For me (and probably you), it's a bit late to turn back now so it's a contradiction I'm resigned to. Neo boutique vinyl is too expensive, anyway.

The one aspect of vinyl records that I am oddly sentimental about is what CDs made go away and now miss: the difficulty of reproducing their contents. That’s what made them fetish objects (cf. Webster's: "a material object regarded with superstitious or obsessive devotion"), and not all the groovy art on the LP covers. “Analog” means what it says: analogy. Etching a master recording for vinyl pressing means making a model of what was on the original recording, whereas a digital format is a reproduction of the original signal and nothing but. Whether analog gives you a smoother, warmer and more complete sound than the super-approximation of digital is neither here nor there, really. It was more significant that you couldn’t copy what was on vinyl records (by taping or whatever) without getting an inferior signal and you still can’t. Accordingly, I doubt anyone in the record industry ever regarded home taping as a serious threat twenty or thirty years ago. Vinyl was like Walter Benjamin turned on his head: a privileged reproduction in the age of mechanical originals. The content of vinyl records was coextensive with what they were as physical objects.^{[see ill-advised footnote]}

Unlike vinyl recoords, CDs are not privileged reproductions in any essential way, except legally. They are conduits for digital sound files that you can extrude and reproduce intact. The fetish aspect parallels the commercial dilemma, although the dilemma is very old news now. For as long as CDs were viewed as a bright, convenient and capacious alternative to vinyl records, their attraction and massive salability were assured. But CDs are not fetish objects, because their content is readily separable from its container. No matter how groovy the art in the booklet and inlay card, their audio content is what’s privileged and – if you’re so inclined, and millions are – it’s a spirit you can exorcise from its host with a few keystrokes.

I still buy CDs, like I said. I have to, given some of my tastes (pervert!) (uh…nerd!), my professional belief that artists need to be paid, and the plain fact that I’m not inclined to put 700 MB of .wav file on a damn hard drive for everything I own. (You aren’t either, but you don’t care.) Recorded music is essential for me and it’s not going away commercially. But it is not the goopy lens of youth that causes me to regard CDs and vinyl records very differently, and that goes double for their respective commercial prospects past and present. If the fetish aspect of salable recorded music product units is eroding (or gone), we have to assume it is now elsewhere (or about to show itself) and that proper re-contextualization of this aspect will mean a new CASH COW. For somebody. After all that pimple misery…


[Ill-advised footnote:]
Aside from the cautionary tale of Reality D. Blipcrotch, a lunatic signed to Jefferson Airplane’s vanity label in the early ‘70s who expected the RCA engineers to rig a marijuana leaf to pop out of his record (literally) at the end of side one, my favorite extreme illustrations of vinyl object-ness are these:

1. “Record Without A Cover” (1985) by Christian Marclay, a fantastic conceptualist who used to do live sound collages with four (and more) turntables simultaneously. “Record” was one of them (and very good listening it is), but it was exactly as advertised. The scratches and pops from the records used were as relevant as their ostensible “content.” Moreover, storing “Record” without any protective covering (as it instructs you to do, etched into the flipside along with the credits) would simply add more content to the thing. It certainly has to my copy.
2. “Sonic Destroyer”/“G-Force” by Underground Resistance (d/b/a X‑101). These secretive Detroit techno guys were vinyl-fetishists to a fault (Mad Mike Banks, especially), but I’m particularly fond of this 12”. Side A has no take-up or take-off grooves and three disconnected bands, the last of which does things with a Roland 303 even more punishing than CJ Bolland’s “Horsepower.” Side B runs in reverse from the center to the rim.
3. “Mentok I” by LFO (Warp 1991). There’s a great story in Simon Reynolds’ Energy Flash (Generation Ecstasy in the US) describing how these guys got an enormous bass sound on their 12” by convincing the mastering engineer to turn the filters off on the cutting lathe. This could have easily caused the lathe to burn out, but it didn’t, apparently. I only have the track on CD (came with UK edition of Simon’s book, in fact), but even there the bass is such that your ass will follow whether your mind is free or not.

Note that all three examples postdate the mass availability of CDs.
[Back up there...]

Mash-Up Retrospective

Only a few years ago, mash-ups were a hot topic and they’re not one anymore. If you draw a blank at that term-of-art, you might recall hearing (or hearing about, more likely) the pre-Gnarls Barkley DJ Danger Mouse’s splicing each vocal track from Jay-Z’s The Black Album into samples from The Beatles’ White Album to make The Gray Album back in 2004. That’s just one mash-up – probably the best known – and there have been numerous others. My personal favorite was made about the same time by a British hacker, monikered “CCC,” who most notoriously spliced each track of The Beatles’ Revolver together with sundry bedfellows ranging from Madonna to Norman Greenbaum (“Spirit in the Sky”). The high point for me was the “Good Day Sunshine” track which combined that song with “All You Need Is Love,” “Getting Better,” “Eight Miles High,” “I Can See For Miles” and “Groove Is In The Heart.” Yes, it smoked. No, EMI didn’t stand for it, anymore than it stood for The Gray Album. Record companies and publishers can’t stand this sort of thing, constitutionally, and please don’t break your heart expecting them to do otherwise, not least (or even) when the Beatles are involved, and note also that the Beatles tend to be. Jay-Z’s comparative forbearance at the time probably references the singularities of the mixtape economy as then constituted (and when I have that figured out, you’ll know before I do) (whoever you are). Inevitably, the half-life of mash-ups kicked in as it would for any other form, not least because mash-ups are a trick with immediately understood and self-limiting parameters, like meme-hacking (e.g. substituting “Cocaine” for “Coca-Cola” in the latter’s typeface and logo). But while The Gray Album is a less scintillating alternate version of The Black Album (I don’t care if you think Hova was overripe by then; he’s Marvin Gaye to me), CCC’s Revolved project illuminated something else for me when I heard it – a simultaneously aesthetic and legal issue, which almost never happens. Really witty mash-ups differ fundamentally from sampling in its typical forms. In hip-hop, for example, whether you can identify the source recordings sampled is incidental aesthetically (if not legally), even when it’s a frankly derivative work with a vocal introduced onto a pre-existing song sampled or recreated largely whole (Diddy’s oeuvre, for instance). In that sense, The Gray Album was actually more a set of unlicensed remixes than a mash-up. In contrast, it is impossible for a mash-up like Revolved to work aesthetically unless the identity of every appropriated fragment is completely obvious. You have to hear every theft. And theft is what it has to be – impecunious solo guerrilla laptoppers snatching music too famous and expensive to license, or even to profitably mount a fair use argument over. Otherwise, it wouldn’t seem so clever. But it also wouldn’t be so effective if the digital audio content had not become so vulnerable to being so appropriated. I can think of no other phenomenon in music more emblematic of that critical shift.