[cc-sampling] retracting THE ANTI-ADVERTISING CLAUSE?? say it ain't so.

mark / negativland markhosler at charter.net
Sun May 25 01:21:36 EDT 2003

At 4:28 AM -0700 5/24/03, Don Joyce wrote:
>"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.

Don- you are rectractng the idea, but below you go on at length to 
thoughtfully sort through how it could all actually work in the real 
world...all good stuff .  So....lets not retract this  yet! Lets keep 
letting this list fool with this, also see if it even matters to 
anyone..and keep on going...


>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.
>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.
>>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)
>>cc-sampling mailing list
>>cc-sampling at lists.ibiblio.org
>cc-sampling mailing list
>cc-sampling at lists.ibiblio.org


HEY!! LOOKEE!! Please note my new e-mail address that I am writing to 
you from -

mark / negativland <markhosler at charter.net>

My old address at attbi.com is no longer being used.
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