Glenn Brown glenn at creativecommons.org
Fri May 23 07:11:53 EDT 2003

You may have noticed this bit of language at the end of our draft:

"All advertising and promotional uses of a commercial nature are excluded
from the above rights, except for advertisement and promotion of the
Derivative Work(s) that you are creating from the Work and Yourself as
the author thereof."


We talked about this ban on advertising quite a bit and almost did not
include it for fear of confusing the issue. But it's a very interesting
idea and is worth airing early on. As you'll see below, I have my doubts
that it will be legally workable, but Negativland has at times persuaded
me otherwise, and I'm sympathetic to the cause.

THAT SAID, I think the real value of this discussion will be to define
what "sampling" or "collage" is, and that that should take priority over
figuring out what "advertising" is. Just a suggestion as you begin
talking . . . 


Negativland explained why they want the sampling license to encourage
creative commercial re-use but ban use in advertising:

"Advertising is now the biggest plunderer and recycler of existing art
there is today. Should this license become widespread, and if an option
allows free-for-all re-use without restriction, ad agencies, more than
anyone else, will jump on this free plunder potential and appropriate
expense and permission-free in their continuing effort to contaminate and
compromise memorable music in everyone's mind by turning some part of it
into ad jingles. That's their right? I don't think so, not without
permission. Not gratis. Because the reuse is not art, it's business. Only
artworks, not business works, should have the right to freely contaminate
and compromise previous art works. . . .

. . . We should carve out a new barrier for free use in advertising,
specifically. This is very important. I don't want my work put in some
advertising without my permission anywhere, anytime, for any purpose. If
I like it in ads, get my permission, If I don't, I don't want to be
helplessly incorporated into the biased speech of paid advertising as if
i may have wanted to be there. Art creation is free speech I have no
problem giving myself to, use me however you want, but advertising is not
art, no matter how much art it may contain, because it is a creation
existing at an outside controlling party's bidding, and all its contents
are paid speech, bought and made for economic, not artistic motives. One
should always have a choice to be or not be part of such frankly
brain-demeaning consumer propaganda. It's completely different than being
sampled in other artist owned and operated art works. And an artist
should not be able to make something with my work sampled in it and later
sell it to an advertiser for use in ads without my permission..
Advertising should be required to clear all samples and sampled works it
uses -- all sampled content in advertising by permission only, just like
it is now, forever."


Skeptical that we could produce a workable legal definition for
"advertisting," I pushed Negativland a bit on the question:

"Will it be possible to come up with language that allows creative
commercial uses but not advertising? I think it's an interesting and
worthy goal, but it seems to require a (1) very strict definition of
'advertising' or 2) a very strict definition of 'creative commercial use'
or 3) both.  

A question for the Negativlanders:  What would you consider a 'hard case'
under your vision--a use of your stuff that would really make you scratch
your head? If a band samples your song in the soundtrack for a movie
(presumably an OK use), and then that soundtrack is used in a trailer
that plays at your local megaplex every night, is that an advertising
use?  Or would the restriction only apply to broadcast or print
advertising in the media?"


Negativland's response: 

"A trailer for a movie is categorically an ad, and like all ads, it's a
category that supercedes everything in it that isn't an ad. A movie is
categorically not an ad. That's the only difference that applies, and
it's always easy to tell which is which.

If the movie company that is using a fragment of yours in their movie for
free wants to make a trailer to advertise the movie, they need your
permission/payment to use that free bit of yours in the trailer even
though it's already in the movie for nothing."


Good point.  But what about publicity stunts, product placement in art,
and other weird, postmodern mixtures of advertising and art? . . . A
question for the discussion list.


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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