[cc-sampling] BACKGROUND: THE ANTI-ADVERTISING CLAUSE

Don Joyce dj at webbnet.com
Sat May 24 07:28:25 EDT 2003


"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."

I'd now like to now retract this idea. It's way too cumbersome since 
if the movie is using you without notice to you, you'll probably be 
unaware of any trailer issue until it's over (given the life span of 
movie promotions). And it contradicts our license statement's 
exception which allows advertising the new work that appropriates 
only. That's fine with me.
DJ
Negativland

------------------
And more...

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

All free, all clear. Again, as long as it is an ad idea or promotion 
for the specific work that appropriated the licensee's sample, let em 
do it. How all that promotion trails off after the original act of 
art appropriation will be fine with me, I'm not worried about being 
swamped by anything like that. The overriding point of restraint with 
this here license is to keep me out of Pepsi commercials without my 
permission, not prevent a new movie, which samples legitimately as a 
work of art, from pursuing acts of advertising itself.

Now Sarah's concern:

"I want to use a song in a car commercial, but it's covered by this
license, so I can't. Instead, I take that song and make a new one--say
I add 24 hours of a baby crying before the song, and then 24 hours of
a baby laughing after the song. (It wouldn't really matter what you
added--you'd just need to substantiate that the complete original was
an "insubstantial portion" of your Derivative Work.)  Then, couldn't I
just use a section of "my" song, which I've copyrighted, that was
mostly just the original song I'd wanted to use?"

Yes, you COULD do this, absolutely. And why not? The license has 
inspired you, working there at that high ticket ad agency, to get 
"creative" with some music you love so much you just have to use THAT 
music by hook or by crook. Welcome to the mind set of 
appropriators... We've already won, you know.

Actually, I suppose if I was an artist with this license and found my 
work in a commercial, and was never contacted for permission/payment, 
and I look into it and they describe the piece (48 hours of baby 
bawling divided by my 30 seconds in the middle, which they 
copyrighted under the title, "Rip Off," and then freely sampled only 
my 3 minutes from, well, I would probably think that was a pretty 
good ruse to take the commercial makers to court on, in order to 
uphold my license. My prosecution would be based on the fact that my 
reused 30 seconds was unchanged, untransformed, untouched, in the 
commercial. Therefore, my work appears there in its original form 
without alteration, and therefore it's not a sample but the whole 
thing just as I made it, and
such a use is prohibited by my CC license. Find me a court that would 
disagree.  How about this? In every new sampled reuse, no matter how 
long the chain of transferred content, the sample is continuously 
under the burden of necessarily being partial. That takes care of 
whole usage through "resampling" the whole thing. So we're into "case 
by case" trials just like Fair Use occasions now.

What if the ad agency does the above "remix" and then only samples 
part of my 30 seconds from their own remix in their commercial 
without my permission? A legitimate free sample according to my 
license. I would then take them to court for sampling me without my 
permission, as decreed by my license, on the basis that their "work" 
(Rip Off") is a rip off. A construction with no esthetic purpose 
beyond containing my work so they could freely sample from their own 
copyrighted "resample" in advertising, an appearance which is 
strictly forbidden by my intent as expressed in my license. We would 
get art experts in there and prove beyond a shadow of a doubt (we'd 
ask for a jury) that "Rip Off" is probably not "good faith" art in 
anyone's experienced estimation, but an attempt to commercially 
exploit my work with a "dummy" work set up expressly so they could 
sample my work in an ad without my permission. That's my case, win or 
lose.

Finally, what if the ad agency does all of the above, but also adds 
some crying in with my work, creating their own new collage within my 
original work, thus transforming it to whatever degree. So this would 
be harder to declare a rip off in court, since my work, itself, has 
obviously been transformed by addition, thus making their remix a 
truly "new" work, a category I can respect.
I might still take them to court on the above defense IF the 
additions were minuscule and obviously intended to stay out of the 
way of the qualities of my original. (A change that changes nothing). 
And if their additions do change it significantly, I'd probably leave 
them alone, even though it is advertising, because (in line with my 
first thoughts above) we won. We have made them change it into 
something new in order to use it for nothing. I'd hate that it's 
advertising, but would consider they'd learned some useful lessons 
which may, in the end, get one or two of them to drop out of the 
advertising game and become serious artists.
But ad agencies have too much money to play with to go through this 
silly recreation process just to fullfil a commercial desire. They 
can always buy something else just as good, no problem.
Such extreme efforts to exploit the rules will be entirely possible, 
but rare, and when they happen they will indeed clog up our courts 
with this wink-wink deviousness and "what is art" nonsense, but 
that's what courts are for aren't they? At least this license let's 
us go to court with a stated view towards the difference between art 
reuses and commercial art reuses, something never really defined 
before as crucial. This license says it's crucial.        

But even most importantly, Sarah, you're first sentence contains a 
wrong assumption. The car commercial CAN use my work in part (or even 
whole!) if they simply get permission and pay for it, as clearly 
stated in the the exclusion clause - just like they must do now. This 
clearance burden has not economically sunk any advertising ships, 
(because if they can't get something cleared, they'll use something 
else they can clear) and this is the burden that goes unchanged for 
advertising in this license. But this creative burden for them also 
happens to be the artist's control over their own work appearing in 
business propaganda without their permission.
DJ









>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
>
>
>
>
>---------------------
>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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