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Subject: Development of the Creative Commons Sampling license (or license option)

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  • From: Don Joyce <dj AT webbnet.com>
  • To: creative commons license list <cc-sampling AT lists.ibiblio.org>
  • Subject: [cc-sampling] Re: advertising wording
  • Date: Sat, 28 Jun 2003 10:03:31 -0700

Title: Re: advertising wording
David,

Well, I just think it's impossible to even adequately describe all possible advertising motifs in a license, and will only result in lots of very small, unread print. Just look at how many paragraphs you used to begin to describe all the devious new techniques! And I don't see how it can be boiled down to fundamental categories as it's all about synthesizing and hybridizing categories now (another form of collage!), as well as new ones we never heard of constantly joining the game. And as you note, many of them trying to be subliminal and not even consciously recognized as "advertising."

So I do believe getting into the details of what constitutes advertising in the world must be left to after the fact litigation of an accused infringement for re-use in advertising. Let them work it out in court on a case by case basis, as they occur. It wont be so sticky to deal with in court as they have plenty of time for details and the paper trail ALL advertising leaves in its hired gun wake, no matter what its technique, will virtually always make it easy to define what is paid advertising and what is not in court. Legally, it almost all comes down to the questions, "Are you an advertising agency and did you get paid by a client for your re-use of this sampling licenced work? (The advertising "form" it may be used in is actually irrelevant.) These are things that wont be able to be denied by ad agencies or their clients or other kinds of advertising entities, and these are all the facts needed to prove they infringed on a "no advertising" license in their advertising. In other words, we go after the particular (primarily monetary) facts in this re-use that DO define a difference between advertising/promotion and art, not the forms or techniques involved where there is actually much similarity to each other. Gee, seems to me it will be pretty simple for a court to determine if something is hired advertising or not in virtually all cases. So simple to establish in court, few advertisers are going to risk this as a way to get free material.

Let advertisers assume what the want to about their own profession, delusional or devious as it may be in practice, but if our licence simply says "No advertising," I think our re-use license holders will actually have little trouble showing who is doing "advertising" and who is not in court. Unlike art, there are no "pirate" advertisers doing it for the pure fun of it and leaving no trail - they are ALL legitimate companies doing business and getting paid by clients and all that is on record. If our one word ban causes all kinds of attempted sneaks around the word initially, I'm sure it will slack off with a few expensive losses to ad firms who try to undefine their function just to get access to free re-use - in itself a minor concern I'm sure, with the budgets they work with. I really think this whole idea of advertisers dying to get around simple wording will be a non-existent "problem," and as Duchamp reminds us, "There is no solution because there is no problem."

Incidentally, my intent on a "no advertising" ban is a concern almost exclusively directed at large, corporate commercial advertising. They are what I most want to prevent free source access to in their collages. If a small club puts up a poster on telephone poles with a piece of some graphic of ours on it, it's advertising but I don't care! Not at all. So I want to let this kind of "innocent" re-use stuff happen in the real world while remaining able to keep our work out of national or local product ads against our will - So with this license, every individual license holder can choose what forms of real-world advertising to prevent access to and which to ignore under a simple cover-all ban on all "advertising." Using the simple "no advertising" decree allows all us license holders to individually choose to contest absolutely anything (whatever form it takes or may become) that re-uses our work and we think is advertising, and also lets us ignore any ad re-use we happen to like or don't care about one way or the other. Yes, this WILL be selective enforcement - exactly what it should be when art and advertising collide.

If copyright prohibitions can do it, so can we.
 
DJ
 
 







I'm suggesting that it be defined in the license because, if it's a matter of justifying recontextualized use of works, advertisers (due to their unashamed and oblivious nature) very well may deny that what they're doing is advertising. I mean, look at viral marketers, bloggers, cool hunters, etc. Actually, one of the basic tenets of viral marketing is "Take advantage of others' resources". Sure they call themselves advertisers to their clients, but oftentimes NOT to the people they're selling to. This trend will only get worse unless our hypercommercialized pop culture manufacturers suddenly snap back in a euphoric moment of self-awareness and shame, but i'm not counting on that to happen before the universe starts shrinking.

Think of the agency that approached you a few years ago to get Negativland to do music for a Miller Genuine Draft ad. I can only guess they were going for some po-mo ironic feel of using music by a group that is highly critical of advertising. Seems like they'd be exactly the types to slide down the slippery slope of self-denial, using any and all materials they can for something they may publicly insist is their "art" when it is, in all actuality, advertising. I'm not saying this would be something as obvious as a TV ad, but you can be sure that there are all kinds of advertising methodologies that have yet to be discovered that will continue to blur the lines between commercial and personal speech.

Even though most marketers and advertisers wear the title proudly on their sleeves, many are trying to "blend in" in all sorts of hip and ironic ways as target audiences increasingly become weary of commercialized hype. I wouldn't put it past them to deny their raison d'etre if they're trying to justify using material covered under this CC license, since much of it will probably be exactly the type of material that would appeal to their "demographic"!

Hence, i think it's necessary to define "advertising" in the license. Otherwise you're leaving all kinds of loopholes for them to slip through...

david



At 11:50 AM 6/27/2003, Don Joyce wrote:
David,
Are you suggesting we define advertising within the license, or create our definition for the first "infringement" case brought by one of our license holders?
You definition is a very good start, excellent, but I would just hold on to it for the first case needing it. In terms of the license, I think most advertisers are pretty clearly that most of the time, self-admitted, unashamed, oblivious to the dangers of their profession, and probably wont consider the word, "advertising" as one that doesn't apply to them. And those that will try that may be contested by our license holders if they care to, armed with our detailed definition of advertising for the jury's consideration.
Of course we'll have a legal fund and everything...
DJ



I think it will be difficult enough to create a definition of prohibited advertising uses without getting into the specifics of *types* of advertising. It seems like it will be more pragmatic to create a blanket restriction if we can come up with a suitable definition of advertising.

The "product shot" is a great example. That IS advertising, just not a traditional 30-second spot on TV ad. We could start off with this dictionary definition:

advertising: The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media.

Seems like we'll need to expand "announcements" since a product placement is obviously a non-verbal promotion. Maybe "paid promotions" would work. But the distinctions between "paid" and not paid could be tricky as well, since advertisers are increasingly using viral marketing as ways around traditional modes of selling. The coolhunting never ends...

david

At 10:52 AM 6/26/2003, Glenn Otis Brown wrote:
 > This is a basic question, but i'll ask it for clarification's sake:
 Almost
 all of the conversations have focused on audio, but I assume that these
 licenses would apply equally to video, print, etc, right?

Right, we want it to be cross-media. Which is part of what makes it hard,
but fun, too.

The complications here arise from the fact that we're
 allowing commercial application usage (ie derivative works that can be
 sold), but not usage for advertising that implies endorsement of a
 product
 or idea. Just wondering if there's any precedent for this type of
 distinction.

That's exactly the complication. I don't know the answer to your question
off the top of my head but can look into it.

While we're on the subject, and since you hint at it, let me ask the
people in favor of an anti-advert clause: Would you be okay with a
nonprofit corp using your stuff in a commercial? Would you be okay with a
university using it? What about if they were doing it for fundraising
purposes?  How about a politician?  Would you be okay with your song
being sampled in film score that played in a film right at the moment the
main character made a shameless product placement plug (think Mike Meyers
& Austin Powers)?  What if your song were used in fundraising materials
for a nonprofit -- advertising or not?










On Thu, 26 Jun 2003 10:36:50 -0400, "i.d." <id AT blackboxstudio.com> said:
 David McConville here with my first post to the list. I've been following
 the threads, and have been most intrigued with the anti-advertisement
 clause.

 Is there any precedent for limiting derivative uses to works that are
 *not*
 selling product? Is there any analogy that can be used for this in other
 case law? There has been a lot of controversy over the use of an
 individual's image or name in commercial media, most of which has focused
 on tightening control of IP (like the latest brouhaha between Spike Lee,
 Spike TV, and Spike Jones' son).

 Are there distinctions in these cases between using a person's name or
 image for artistic or fair use applications and commercial or advertising
 applications? The complications here arise from the fact that we're
 > allowing commercial application usage (ie derivative works that can be
 sold), but not usage for advertising that implies endorsement of a
 product
 or idea. Just wondering if there's any precedent for this type of
 distinction.

 This is a basic question, but i'll ask it for clarification's sake:
 Almost
 all of the conversations have focused on audio, but I assume that these
 licenses would apply equally to video, print, etc, right?

 thanks,
 david

 At 10:23 AM 6/26/2003, you wrote:
 >I would personally feel a lot better if there was some kind of
 >anti-advertising clause in there.
 >
 >This would differentiate between musical artists using my music and
 >selling it -- which I have no problem with -- and advertisers taking
 >advantage of it, which kinda makes me sick just thinking about it...
 >
 >thanks :-)
 >
 >lisa
 >
 >
 >
 >On Thursday, June 26, 2003, at 07:10 AM, Glenn Otis Brown wrote:
 >
 >>Hi Don,
 >>
 >>I was considering the inclusion of an anti-advertising as an issue open
 >>for discussion still. I figured that that anti-advertising idea we've
 >>been batting around on the list would do what you say below.
 >>
 >>Was just trying to settle on the stuff we can probably agree on
 >>relatively easily before we finally settle how the advert. idea would
 >>work. (But yes, in principle, this option could exist.  I still worry
 >>about making it work, but that doesnt' mean I'm not willing to try.)
 >>
 >>Glenn
 >>
 >>On Thu, 26 Jun 2003 04:05:24 -0700, "Don Joyce" <dj AT webbnet.com> said:
 >>>Glenn,
 >>>Would it then be possible to have an option in the sampling license
 >>>to restrict any and all uses in commercials or advertising
 >>>specifically without payment/permission. This means transformed or
 >>>not. This is because what some of us may want is to NOT appear in
 >>>commercials at all, not on the basis of whether we're transformed or
 >>>not, but on the basis of commercial intent which we don't wish to be
 >>>associated with in any form. We do not claim claim this right of
 >>>control over association in art if we are "transformed," but we sure
 >>>should be able to with regard to commercials which are not art.
 >>>DJ
 >>>
 >>>
 >>>
 >>>
 >>>>It seems we're more or less settled on the meat of the sampling language,
 >>>>but we have to figure out (1) this warranty and third-party rights issue;
 >>>>(2) how this license fits in the overall CC model.
 >>>>
 >>>>Issue (1) is something our board is talking about right now. There's been
 >>>>discussion about this re: all our licenses, and I think we'll have some
 >>>>decision soon. So let's hold off on that for now.
 >>>>
 >>>>(2) We haven't talked much about how the license will fit in the overall
 >>>>model. Here are my thoughts: first what I think CC policy should be, and
 >>>>second, why.
 >>>>
 >>>>The sampling license should be a stand-alone specialty license.  A user
 >>>>comes to CC, clicks choose license, and sees pretty much the same menu of
 >>>>choices they see there today:
 >>>><http://creativecommons.org/license/>.
 >>>>But they also see, prominently flagged next to this menu, a list of our
 >>>>"specialty licenses": sampling, education, developing nations, founders
 >>>>copyright.
 >>>>
 >>>>Let's say the user then clicks on "sampling." My ideal is that this is a
 >>>>standard license with no options:
 >>>>Attribution is always required (BY:), and commercial use is permitted
 >>>>only for transformative works (sampling, mash-ups, etc.); "share alike"
 >>>>is not an option, and "no derivative works" is obviously not an option.
 >>>>
 >>>>Here's why:
 >>>>
 >>>>a) More options aren't necessary. Offering a commercial-noncommercial
 >>>>option in the sampling license wouldn't make sense. Right now, if you
 >>>>wanted to allow any commercial use of your work, including derivatives
 >>>>and verbatim copies, you could simply use any of our current licenses
 >>>>that 1) don't specify "noncommercial" and 2) allow derivative works. The
 >>>>whole point of this license is refining that noncommerical provision to
 > >>>>allow commercial transformations but not commercial verbatim copying.
 >>>>
 >>>>Also, 99% of our users now require Attribution, and Negativland has
 >>>>seemed keen on requiring it, too. I like the idea.
 >>>>
 >>>>b) Simplicity. I like our main menu of options right now and want it to
 >>>>remain pretty stable and simple. The more options we throw into that
 >>>>menu, the more confusing, time-consuming, and complicated the licensing
 >>>>process gets.  So let's stick with our "a la carte" menu, and offer a
 >>>>separate "prix fixe" menu next to it.
 >>>>
 >>>>--Glenn
 >>>>
 >>>>---------------------
 >>>>Glenn Otis Brown
 >>>>Executive Director
 >>>>Creative Commons
 >>>>glenn AT creativecommons.org
 >>>>+1.650.723.7572 (telephone)
 >>>>+1.415.336.1433 (mobile)
 >>>>_______________________________________________
 >>>>cc-sampling mailing list
 >>>>cc-sampling AT lists.ibiblio.org
 >>>>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
 >>>
 >>>_______________________________________________
 >>>cc-sampling mailing list
 >>>cc-sampling AT lists.ibiblio.org
 >>>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
 >>---------------------
 >>Glenn Otis Brown
 >>Executive Director
 >>Creative Commons
 >>glenn AT creativecommons.org
 >>+1.650.723.7572 (telephone)
 >>+1.415.336.1433 (mobile)
 >>_______________________________________________
 >>cc-sampling mailing list
 >>cc-sampling AT lists.ibiblio.org
 >>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
 >
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 _______________________________________________
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---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)

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