[cc-sampling] Copyright of Derivative Work

Don Joyce dj at webbnet.com
Sun May 25 19:45:45 EDT 2003



>"Are there any other problems this point raises? Can we imagine any
>scenario in which the Sampler deserves to claim some measure of
protection in the Sampled material as incorporated into the new song?"

Yes, it is the protection any other original creation gets now.
The operative magic in collage of any kind is to combine and 
recombine the found, familiar and unfamiliar, to create a new, 
physical and emotional "whole," which is obviously more than any 
simple sum of its parts can produce. Collaged works in all media are 
all about mixing contexts, familiar and unfamiliar, within a whole 
new context that is an original work of fused disparates, if that's a 
word.  So, in theory, I'd say the sampler has the same right any 
copyrighter of anything original has, to copyright their original 
work entirely in their own name. This is the only way it can continue 
to be done, just like anything else that's original, and for the same 
reasons.

I must go on and on about this.


This all gets back to the "third party" claims issue in chains of 
reuse - (actually, a rare and unusual occurrence compared to all the 
one-time reuses of one source by modern art and business, I believe)
At any rate, we should be open to the idea that whatever mere wording 
we come up with, there is the distinct possibility, likelyhood, and 
full expectation that our license, by trying to do the most good for 
the most art out there, and by putting the needs of art-process 
before and above the assumed and habitual commercial "needs" of 
individuals in the progress of art, it nevertheless may also conflict 
with existing, much more minority-focused laws, such as existing 
copyrights for instance. When it comes to present copyright holders, 
this wont be a harmony device.

Some of those prohibitive copyright owners are always going to be 
appearing in some collage artist's work, from paper paste-ups, to 
audio sampling, to multi-film combine edits, to Andy Warhol, to your 
own website, to the unnameable future of the human artistic 
imagination and what it may be contemplating then.

No one seems to have a clearly satisfying solution to this obvious 
third party conflict with present law that will, indeed come to blows 
around our CC license if we don't at least attempt to account for it 
in the license wording.

I come to this from art, so my proposed solution is utopian good 
sense but highly improbable and unworkable as hell.

The obvious, best-for-art solution is to declare that any work 
bearing our free-reuse CC license automatically abrogates any 
previous claims of copyright ownership which may be held by any of 
the reused content. The CC license simply says,
  "By all the rules of art, I am a new and original work of art, sorry 
as I may or may not be, and all 'rights' of ownership over this 
entire new work created by me alone, are mine, and I declare I don't 
want any control over its partial reuse, except in advertising."
Bravo.

This is only saying about CC works what copyright now says about 
so-called "original" new works (actually "original" art, especially 
popular art, almost always means a polite degree of divergence from 
something one is copying!) So the CC license says this relatively new 
kind of new work is ALSO an "original" work in every important-to-art 
way, and fully deserves its attempt to exist, regardless of the 
claims of the content within it.

The possible harmful effects of this on society are, of course, 
exaggerated. First, this whole reuse situation only occurs once or 
twice, if it ever happens at all, in the entire life of your average 
traditional copyright holder (unless you happen to be James Brown or 
Casey Kasem or Julie Andrews or one of those other extremely 
rich-already and tiny minority in show biz who have become sampling 
celebrities of some sort.) The vast majority of copyrighted works 
will never encounter this phenomenon of reuse at all, ever... We're 
talking about dangers that will never be dangers to 99.9% of all 
copyrights, iron tight forever.  To happen to lose one's copyright 
control in this one, specific type of reuse (when a new work is 
created) will not frighten those celebrity's bankers much since they 
still retain their traditional copyright control over all other 
reuses of their intact work outside of these silly art 
appropriations, all commercial reuses, etc. These rental and 
compilation reuses are all any artist ever intends to profit from 
when they get into this biz, and they would continue to when sampling 
is free. But in a sampled context, it's not about "them" anymore, 
it's partly about a part of "them" in a whole new context.

But anyway, if this appears to be a devastating hardship of some kind 
on those freely sampled, the number of devastating reuses going on 
which result in a new work are comparitively few. Collaged art forms 
wreck nothing crucial to anyone's expected copyright income, why it's 
practically harmless! The present sample clearance depts. at big 
music factories are the only ones I can think of who might want to 
disagree with this, to whom I would say,

"Hey music owners, just like the Israeli settlements, you have over 
extended your opportunistic greed for every conceivable form of 
income which might be derived from copyrights, now including 
sampling. You actually don't deserve that extra private income when 
it routinely inhibits, prevents, and/or censors the creation of new 
art, you know, the way sampling clearance routinely does?
So, to accommodate our better instincts, the Israelis will have to 
pull out of those presumptuous settlements and you will have to pull 
out of that presumptuous music sample clearing business. It's an 
insult to free expression, an unforeseen luxury, it's not the 
economic plan of any artist to be sampled, (can you imagine counting 
on it?) and any sampling income is a surprise, unearned, and quite 
unnecessary for their continuing sustenance as a self-contained 
artist. In other words, free sampling does not represent a 
significant threat to them or their career by being free. And as I 
said, if it is a threat to ego in some cases, that's free expression 
for you, big deal, get used to it, and sampling rarely occurs to any 
individual artist, period, anyway. But overall, times have changed. 
Art is the car and you are the blacksmith. And we're building a 
sample freeway right through your house. Thank you."

That's what I'd say.

Also, a thought: Negativland has been using the motto: "Fair Use For 
Collage" as a pathetically obtuse rallying cry for this issue for 
some time. ( ha ha, see any placards in the street saying this yet?) 
What this CC license is actually trying to allow is exactly the same 
as "fair use for collage" implies. But simple as the motto is, it is 
perhaps somewhat clearer to artists and others what "fair use" means 
in general as law (no payment or permission required to reuse 
otherwise copyrighted material) and the legal condition of fair use 
is exactly what we're after with the CC license, in essence, 
redefining our own fair use standards. These are MUCH expanded fair 
use rights from what  is now found in legal fair use, but the CC 
"conditions" might well be called "fair use" since it really is just 
an expansion of that very concept, in this case as applied to collage 
arts only.
Most importantly, Fair Use, which is real and already exists and is 
in effect right now within copyright law, is ALREADY a working law 
which abrogates any previous copyright claims when the new work is a 
legally defined "fair use" of that copyrighted material.
Fair Use is the whole precedent in law which says you CAN abrogate 
former copyrights in a new work for a good reason. I rank free 
expression right up there with free speech, and art represents both 
in society. Maybe we should be associating these CC license 
conditions with artistic "fair use" or something, and just hope for 
the best as to how we're ever going to get third party constraints 
out of these otherwise fair use works with a CC license.

Second, Under my proposal, the CC license would then, of course, be 
attempting to abrogate existing contract law without the help of 
Congress. Sometimes the Supreme Court does this too, and that's where 
this would end up, defending art against the law in the Supreme 
Court, if my proposal is followed. We can copyright the trial 
transcript and sell it as a parody to cover expenses.
- But worth it just for the publicity on our points? You bet! Now, 
who's going to pay for it?

But any formula I've heard to accommodate traditional copyright 
constraints within a new work that the reused copyright holder had no 
hand in making, if that third party can control reuse of this new 
work, it either makes the new work just as impossible to sample from 
as anything else, requiring payment to and permission from the 
elements within the new work, or it's going to dissuade against the 
possible creation of such works in the first place, just like 
traditional copyright does now. See? There is no free lunch after 
all. The CC free lunch license becomes rather meaningless as a true 
"change" of any kind. All the same old problems remain under this 
license which is intended to escape them and feed the arts for 
nothing.

Let's face it, it's a bold-faced paradox to try to give away a whole 
bunch of something for reuse, but you will may have to pay for and 
get the permission of the individual reused things in that bunch, if 
you actually want to reuse some part of this bunch yourself in 
anything new. Sounds like bait & switch to me. So to me, this would 
be phantom "freedom," unless the CC license actually attempts to 
actually supersede the validity of any claims of any of its content's 
copyrights, on the basis of now BEING a new and original work itself, 
with a new and unrelated "owner." I would want the license to be an 
expansion of the fair use concept to these particular new art 
practices, just like Fair Use now extends to parody, news, 
commentary, educational reuses, etc. The term, fair use, might help 
congeal the general public's understanding of this free-reuse 
license, since  it's virtually the same thing.

And third, this third party claims issue (an issue of probably 
immediate contention from the law community, being addicted to the 
sanctity of contract law ubber alles as they are) is the uncracked 
nut of legal viability in this particular CC license. We must 
confront how this third party issue may play out as a legal argument 
IF we were to claim ourselves to be a license for artistic fair use, 
which, like news or parody, also needs to be excluded from its 
incorporated copyrights and their control over the fate of the work.
Maybe, "We Are All Parody!"  How's that for a placard?

So far, I fear I see us tip toeing away from directly confronting 
this third party control issue in collaged work because it does 
appear impossible to include it and still be claiming to be giving 
this work away to free reuse, and trying to abrogate such third party 
claims just means our license will be dismissed as utopian good sense 
but highly improbable and unworkable as hell. Income hustling will 
win.

And if I may be even more provocateering, I would be very curious to 
hear from our legal eagles describing to all of us what we have in 
store in terms of making this license "stick" in any court today, 
with and without the third party abrogation concept?
Like, I have no idea whether applying this CC licence to our CDs of 
audio collage - the contents of which are probably heavily 
copyrighted, some of them really old, all the way up to recent, so 
many we decided to just make it, sell it so we can continue this 
expensive art music production game for the ages, and worry about the 
preventative copyrights involved later, or else this stuff will never 
get made at all - whether that CC free use insignia on this work of 
"illegal" appropriation, which is technically "infinging" on existing 
copyrights, (after all, literally everything one might find out there 
to reuse is already copyrighted and that wont change), will this CC 
logo actually have the force of say, my last will & testement, in 
criminal art court where a bit of content is suing either us, for 
reusing them as fair use in the first place, and/or suing a third 
party who has sampled from our illegal sampling and which also 
includes a bit of the suing content's work? What will the CC license 
get me in terms of ... respect?

DJ









>On Fri, 23 May 2003 11:29:00 -0400, "Sarah Brown"
><sbrown at old.law.columbia.edu> said:
>>  >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.
>>
>>  What happens to the copyright of the Derivative Work?
>>
>>  It seems you may need some language that says something like "The
>>  Derivative Work as a whole can be copyrighted, however only those
>>  aspects that are not a part of the original are protected."
>
>This is another really good point.  Here's another potential problem that
>could happen under the draft as it's written now (I think so, anyway):  I
>use a distinctive trumpet riff from your licensed song in mine, then
>copyright my song. The next time someone tries to sample that trumpet
>riff, I sue them for copyright.  (The nightmare may not be quite that
>simple, but it's scary enough that we want to make sure to avoid it.)
>
>Sarah's proposal above is nice, though I'm not sure if as-worded it would
>get around the example above. In any case, it's a big improvement that
>we'll put it in the "duly noted" column.  Maybe we could put up an
>"annotated" version of the original draft language up on our site, so
>people can track changes?
>
>Are there any other problems this point raises? Can we imagine any
>scenario in which the Sampler deserves to claim some measure of
>protection in the Sampled material as incorporated into the new song?
>
>Glenn
>
>>
>>  If you don't, would something like this be able to happen?
>>
>>  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?
>---------------------
>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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