The sound collage group Negativland first rose to fame when Island Records sued them for trademark and copyright infringements over the joke single "U2," which satirized a certain mega-popular band that called Island home. On their new album, they take on an even larger, more omnipresent entity: Pepsi and its pervasive advertising.
\\Due to trademark law -- and typical of Negativland's insider humor -- the new album is called "Psdiseip," and comes with a number fans can dial to get the real title: "Dispepsi." Consisting of advertising soundbites, jingle snippets and talk show chatter, along with some Negativland music, it's the world's first cola concept album.
\\"Dispepsi" will certainly get attention for its unlikely subject matter -- perhaps some of it from the very subject it mocks. (Pepsi officials are aware of the disc but are so far shrugging their shoulders.) After all, Island pressured Negativland and their label at the time, SST, to settle out of court. The band was then sued for damages by SST.
\\Suffice it to say that after that experience, Negativland decided to release "Dispepsi" on its own label, Seeland Records. According to a statement issued by the band, "Dispepsi " is a "mockery of a single example of corporate advertising which spends multi-millions of dollars bombarding and assaulting all of us with a never ending, unasked for, and unavoidable barrage of billboards, print ads, TV and radio commercials."
\\Despite their very public Pepsi Challenge, Negativland declined to be interviewed for this story unless Rolling Stone.com agreed not to contact Pepsi for a comment -- a request that was denied.
\\"They feel that if you're going to contact Pepsi, then they just can't be a party to that," said a spokesman for the band. "They want to sell as many copies of the album and get as much press as they can before Pepsi takes action."
\\So far, no action is forthcoming. "Certainly, we'd have to look more into the disc," says Pepsi spokesman John Harris, "but we constantly laugh at ourselves in our commercials as well as our competitors, and we feel it's important to have a good sense of humor. That's why Pepsi ads are so memorable."
\\Nevertheless, the band is apparently bracing for the worst from a corporation with considerable financial clout. As a kind of pre-emptive strike, the first sentence inside "Dispepsi "'s cover reads: "All of the cola commercials that were appropriated, transformed and re-used in this recording attempted to assault us in our homes without our permission."
\\Attorney Betsy Pearce, who specializes in music and theater trademark law, foresees potential copyright and trademark problems with Negativland's album. The band's use of a red, white and blue circular logo on the album cover, for example, might be considered a "dilution of trademark." Current trademark law prohibits trademark alteration or distortion.
\\"The question is, would the average Joe on the street see that album cover and think it was a Pepsi product or a product endorsed by Pepsi? If so, you've got problems," says Pearce, who adds that there are also likely copyright infringement issues associated with Negativland's usage of jingles and Pepsi-licensed music.
\\Law professor William Fisher, who specializes in intellectual property law at Harvard University, says that while copyright law does indeed protect many aspects of advertising, Negativland's "most promising" strategy would be to pursue "Fair Use" doctrine. That doctrine allows the usage of parts of existing works for "scholarly purposes, commentary, or education." According to Fisher, the recent U.S. Supreme Court ruling that 2 Live Crew's sexually explicit parody of Roy Orbison's "Oh, Pretty Woman" was legal set a precedent favorable to Negativland's style of appropriation-based