[cc-sampling] Anti-advertising, what about attribution?

Don Joyce dj at webbnet.com
Tue May 27 00:39:03 EDT 2003

I see no problem with distinguishing between advertising reuse and 
artistic reuse (for the first time in reproduction law). It would 
solve a lot of ambivalence and smudgy thinking that doesn't quite 
discern the nature of this difference in terms of re-use, while 
everybody knows there certainly IS a difference in intent.  It's 
those differences, obvious in their respective intents to everyone, 
(is it art or is it an ad?) that are crucial to art reuse now because 
advertising has become the biggest of all re-users of existing 
culture. Art and advertising are using collage methods for exactly 
the same reason (the modern appeal of that method of expressing 
something) but one is free expression and one is paid expression, one 
is self-determined by whatever artist made it and the other is not. 
And even when a completed, freely expressed work of solitary art is 
bought by an advertiser and put in their ad, that work in that 
advertising context ceases to be free expression when in that 
specific context. Advertising infuses all elements inside it with an 
ulterior motive not present in original art works.

This ulterior motive behind the very existence of advertising art is 
not "quixotic" to me, it's the concrete and defining insincerity that 
underlies and characterizes all advertising to me, and it's why I 
don't want any of my art appearing there as free sampling unless I 
give them my permission to use it there. Otherwise, if free reuse 
extends to advertising, I can be made to speak for or support a 
commercial product, a political party, or some media content I may 
not actually endorse. I may be associated there with all kinds of 
consumerism external to my art I neither want nor am even made aware 
of. Attribution of my work there hardly makes it better, it just 
'advertises" my helpless presence there and so that's even worse to 
contemplate! An appropriated use of my work without my permission or 
knowledge to advertise anything beyond myself represents a lie and a 
deceit, (Something I cannot claim to be the case in any free 
expression appropriation, no matter how deceitfully it may choose to 
abuse me there) so I want special rules for reuse in the special case 
of advertising only, because it alone, as a unique category of 
potential art re-use, is hopelessly compromised and infected by this 
ever-present ulterior motive behind its existence, and it taints 
everything it touches with that stink. Art should not be 
automatically subject to this "re-spinning" in consumer propaganda 
unless it asks for it. But anyone else can re-spin my free re-use art 
anywhere they want to in their free expression.

I agree with the reasoning behind present copyright law that requires 
advertising to use payment and permission to acquire their content, 
even if it probably isn't the same reasoning I'm using at all, 
because their reasoning still extends to everybody else as well. But 
it works for me. In proposing universal free re-use of existing 
content in the creation of new works, I want the exclusion of 
advertising's right to do this in their new works. For them, the 
copyright law that restrains them from free appropriation would 
remain in effect, just as it is now.

At any rate, as I see it, it would not be difficult to make either 
the case against free appropriation in advertising, or implement this 
particular surgical exclusion to otherwise universal free re-use in 
the arts. Easy because ads can be easily distinguished from 
free-expression art by definition, and this technical division 
between art works and ad works is always clear and distinct (there 
are contracts for every ad made stating what agency made it and who 
it's made for - no question about what is and is not a commercial 
"ad," even in our commonly recognizing perception of them, (except 
for product placement and a few other new forms of "subliminal" 
advertising, but there are contracts on record for all those too), so 
all advertising re-users can remain distinct in law, be made 
accountable, and  their particular content re-uses kept separate from 
those in fine, freelance, or other art, which we certainly want to 
allow and don't have to be vigilant about at all.

>Despite all sympathy with the ground for such an anti-advert proposal,
>I think I side with Glenn: policing the border between speech about
>art and speech about selling art seems quixotic to me.
>However, in the spirit of discussing "what it is FOR as opposed to
>what it is against," I ask: has there been consideration of including
>an attribution requirement (perhaps even a loosely defined, but
>deal-breaking one, using such words as "prominently displayed"
>"unmistakably identified" "megalomania-compliant" or whatever)?
>If the requirement to attribute in any use is strong enough, it's
>unlikely many ad agencies would see a benefit in simultaneously
>advertising Negativland and X-brand Widgets--and if they do, well,
>it's free advertising for you.  Naturally, such a clause would apply
>to artists as well, but liner notes, credits, acknowledgments and
>shout-outs seem a much more common aspect of art than of of
>Alternately, a share-alike clause could have the same effect, since
>most ad-agencies see their commercials as property just as much as
>what they advertise.  In a perfect world, this has the effect of
>making ads sample-able and transformable, but it potentially limits
>the number of people who will make use of the original, artist or
>perhaps there is another, as yet undiscovered way to achieve something
>similar, but I don't think it can rely on either a common-sense or a
>legal distinction between art and advertising, but instead on a clear
>understanding of what ad agencies and corporations actually want
>(besides your mind)-- so that you can deny them that.
>Christopher Kelty
>cc-sampling mailing list
>cc-sampling at lists.ibiblio.org
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