Glenn Brown glenn at creativecommons.org
Fri May 23 06:59:11 EDT 2003

Here's some background at how Creative Commons and Negativland arrived at
this particular phrase:

". . . a good-faith partial or recombined usage employing "sampling,"
"collage," "mash-up," or other comparable artistic technique, whether now
known or hereafter devised, that is highly transformative of the
original, *as appropriate to the medium, genre, and market niche* . . ." 


One of the challenges of developing this sampling/collage license is
drafting it for use in many media -- audio, video, etc. -- and many
different genres within those media. 

One way to do this would be to try to imagine every last possibility and
include relevant language in the license. But this is cumbersome, and we
couldn't possibly think of every last scenario. 

So instead, we chose to define "sampling," "collage," etc. as a "highly
transformative" use "appropriate to the medium, genre, and market niche."


This is what I had to say about this approach in our original weblog
discussion on the matter:

"We anticipate that the phrase 'as appropriate to the medium, genre, and
market niche' might prompt some anxiety, as it leaves things relatively
undefined.  But there's more method here than you might expect:  The
definition of 'sampling' or 'collage' varies across different media. 
Rather than try to define all possible scenarios  (including ones that
haven't happened yet) -- which would have the effect of restricting the
types of re-uses to a limited set -- we took the more laissez faire

This sort of deference to community values -- think of it as 'punting to
culture' -- is very common in everyday business and contract law.  The
idea is that when lawyers have trouble defining the specialized terms of
certain subcultures, they should get out of the way and let those
subcultures work them out.  It's probably not a surprise Creative Commons
likes this sort of notion a lot."


And here's what I said in our early conversations about defining sampling
and collage by what is "appropriate" to the medium, market, and niche:

"Usually, this approach of deferring to the culture or norms of a
particular market is a neat way for the law to make contracts and such
more flexible, since you can't possibly account for every last
scenario.  It shows a lot of respect for custom, too.  The problem is, as
you point out -- and this I think is really fascinating, cutting-edge
stuff about the tension between art and law -- is that the act of art
often happens precisely by from breaking from custom and norms. This
question is extremely cool, I think, and gets at that old but
still-interesting question about the difference between good artists and
good criminals."


Here's how Negativland responded:

"Art and law don't mix well to begin with; they're starting from very
different points of cultural intent -- the law trying to respect and be
guided by custom and precedent, and (modern) art trying to break custom
and escape all precedent if possible.

It's oil and water, and like oil and water, we need them both.

My solution would be to certainly try to increase art understanding in
the creation of law effecting art. So often, it's just missing. And in a
similar vein, try to give art and its real needs more respect and more
clout whenever art comes up against commerce in court. Try to get art out
of it's present under-valued, under-represented, underdog position
whenever it is dragged into court over something it has done to
somebody's business. Ironically, copyright law, a law all about
creativity in every way, is incredibly art-ignorant in its demands and
expectations for 'protection,' its actual repressions of various forms of
now thoroughly legitimized creativity as 'wrong' and not permitted. This
is why it's so easy to tag copyright as acting like the art police.

Certainly in terms of appropriation arts, the minute you make laws
regarding art's 'proper' domain, there will be art law breakers,

How do you write commercial art protection laws that are actually
flexible enough to allow, even accommodate this simon-sez reaction of
"perverse" art (often not commercially motivated)? Because it's actually
more beneficial to our whole cultural evolution to have these
unaccountable art reactions, overturning expectations and challenging
whatever we've become comfortable with, wherever they may take us. It's
only art..."
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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