“That’s the letter U and the numeral 2”

The cover of the now-notorious Negativland “U2” EP

With the recent passing of Casey Kasem, known primarily in the US as the voice of the “American Top 40” radio countdown and as the voice of Shaggy in the “Scooby-Doo” cartoons, I thought of one of Kasem’s more notorious outings, and one that was an early example of current hot-button topics such as copyright, fair use (an American term, sure, but increasingly close to Canadian-style fair dealing), and transformative use.

Long before law and librarianship beckoned as potential career paths, I really, really wanted to be involved in either film or television, and as part of a high school co-op program, I secured a placement at Global Television, which was a fantastic experience with lots of great memories. My boss was a former DJ and dyed-in-the-wool evangelist for radio (this was the late 90s, so pre-podcast radio-is-dying-or-dead), and I will forever remember a key piece of advice that he imparted – and one that is equally applicable in radio, television, or film – which was that if a microphone is in front of you, you have to respect it and assume that it is on. In other words, watch what you say or do, as you never know when the tape might be rolling. Many, many, many radio, TV, and film personalities have forgotten this fundamental tenet, to their everlasting embarrassment (Gord Martineau, we’re looking at you).YouTube could barely exist without this gift that keeps giving.

Pre-internet, Casey Kasem was a victim of this truism, when in 1991 the band Negativland managed to thoroughly embarrass and infuriate not only Kasem, but also the band U2’s record label, Island Records, with the release of their “U2” EP. Somehow Negativland had managed to obtain outtakes from “American Top 40” that captured Kasem ranting in a manner that was very, very much contrary to his relatively wholesome public image. The outtakes were interspersed with what can only be described as an cacophony that also includes snippets from and open mockery of the then-recent U2 songs “Where the Streets Have No Name” and, particularly,¬† “I Still Haven’t Found What I’m Looking For“. The EP had two tracks – “I Still Haven’t Found What I’m Looking For (1991 A Capella Mix)” and “I Still Haven’t Found What I’m Looking For (Special Edit Radio Mix)” which, despite effectively being disappeared in the pre-internet age, have managed to continue to exist thanks to YouTube and even a later CD release of questionable legality (but awesome title).

It is possible that Negativland would have been able to have the EP released without incident but for the album art, rather than its content. It was released just before U2’s landmark album Achtung Baby, and the giant “U2” on the cover was seen to be misleading by U2’s record label, which successfully sued for copyright infringement in order to get the album off the shelves.

It is an interesting case, especially 23 years on, as it was coming at the tail end of a period in which sampling without attribution was a pretty common practice (as was the case in a ton of old hip-hop and rap albums and songs, notably Paul’s Boutique, Three Feet High and Rising, and “The Adventures of Grandmaster Flash on the Wheels of Steel” – among many, many others), but was ever-increasingly being curtailed by litigation surrounding the use of uncleared samples. In the realm of mainstream music, at least, sampling has largely become the reserve of wealthy, major-label acts who can afford the time and trouble to obtain clearance for recognizable samples. There are plenty of exceptions, of course, with so-called “mash-ups” becoming a recognizable and viable genre. Record labels like Illegal Art¬†have managed to continue their existence and release music by acts such as Girl Talk, despite their dubious legality and artists like DJ Shadow and the Avalanches have largely evaded closer scrutiny by dicing the majority of samples until they’re unrecognizable.

The difference with Negativland was the fact that they embraced the notoriety that the case brought (and even published a book about it – alas, we don’t have it) and it stands as the closest thing that they have to a “hit” record, a fact that is all the more remarkable given that this whole scenario unfolded prior to the ubiquity of the internet. It is impossible to say how it would have unfolded today, but it would certainly have been very, very different. For a comparison, just take a look at Danger Mouse’s Grey Album mix of Jay-Z’s Black Album and the Beatles’ White Album on YouTube. Once the genie was out of the bottle, it was impossible to put back in.