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

mark / negativland markhosler at charter.net
Mon May 26 01:15:15 EDT 2003

At 5:20 PM -0700 5/25/03, Don Joyce wrote:
>No, I'd now want to go along with the clause as written -

>that a work that freely samples is allowed to reuse their work's use 
>of those samples within advertising for that work (only). No big 
>deal there, I think, even if the movie is a dumb dud of an 
>exploitive horror. Big deal. You're in the trailer. To try and 
>control what is sort of an automatic possibility, (actually showing 
>the movie you're advertising), in that one kind of advertising, it 
>would be very awkward to pursue, and is not all that necessary if we 
>can control unwanted usages in all other kinds of ads but that one 
>self-contained type. The present wording does that.
>Oh, we'll keep going...

Okay...but your e-mail came across to me as if you meant to RECTRACT 
the language as currently written. Not keep it as is (maybe I 
misunderstood you?) . So I think we should make it clear to the list 
that we are saying keep it as is? Right, Don?


>>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 
>>>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 
>>>>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.


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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