[cc-sampling] artistic credit?

Don Joyce dj at webbnet.com
Sat May 31 06:41:04 EDT 2003

To some of us who sample, it is a matter of artistic integrity to 
name our sources for many reasons, no matter how small the fragment 
(within reason, there is a hassle line at which work on attribution 
stops) but certainly in the case of large swipes, it's only polite...
Mainly, it's much better for collage art, as a widespread practice 
and process of amalgamation, to stay honest and transparent about its 
own construction in my opinion.  I would like to see the license 
reflect this larger, non-individualistic view of this nothing-to-hide 
art form by requiring simple attribution, as an etiquette the art 
espouses. If one doesn't want to for any reason, don't. There wont 
really be any knocks on their doors for breaching etiquette. But, on 
the other hand, if any free sample licensed artist is reused and 
unnamed, he could invoke his license and take the sampler to court 
and force them to attribute him as a source in their work, but 
nothing else. None of that "damages" stuff, please. But I think this 
license might, like a lot of licenses do, espouse etiquette.

Anthologies and compilations are not collages or partial uses by 
definition. It may be one chapter from a book in the anthology, or 
one song from an album on the compilation, but both are 
untransformed, and intact as created. The stated guidelines for free 
re-use mention "partial" and "transformed" as the defining factors 
for free re-use. In the unique case of collage, which can and has 
involved both large and small chunks of something else, and gone on 
to transform these chunks themselves to degrees ranging from totally 
to not at all, we devised the partial/transformed duality to apply to 
distinguishing collage from other partial uses like 
anthologies/compilations. This duality is judged in collaged work as 
a balance of factors present, similar to the way Fair Use is legally 
determined. A song on a compilation may be a "partial" usage (if one 
is convinced the concept album it comes from is the "whole,") but it 
is, as a track, untransformed on the compilation. In collage arts, if 
you use a "whole," it must be transformed to constitute anything new 
or different from the original intent of the work and the artist who 
made it (the transmitting goal of an anthology!), however if you use 
a fragment in collage, it need not necessarily be transformed at all. 
When a conceivable "whole" is incorporated into a collaged work, it 
must be seen to be trasnsformed because it has not automatically met 
the "partial" requirement. If something obviously meets the "partial" 
requirement, it need not "transform" the source fragments because 
fragmentation is transforming.

All in all, the purpose of sampling/collage is to transform it's 
contents via a new context altogether. Anthologies and compilations 
have an opposite intent (just as bootleggers and counterfeiters have 
an opposite intent) and that is to represent its contents as 
unchanged from the original, they are marketing the appeal of the 
unmanipulated original in a new context that contains nothing new. 
There could be borderline anthology or compilation concepts also 
intending to be reactive or creative with the work they contain, thus 
confusing this normally easy identification between art and 
reproduction, and those are the cases that may end up in court, where 
this dual factor balance in the license will be argued both ways 
enthusiastically, I'm sure.

Are we supposed to think of things that will eliminate all future 
court cases? Or something that works pretty well to make this 
difference in re-use clear in the vast majority of real examples as 
we know them.

Is it a "transformed and/or partial re-use?" is the whole answer in a 
nutshell with a question mark.
Anthology/compilation editors generally work hard to not transform 
the various materials they're re-presenting. This is always pretty 
obvious in the usual proof of pudding ways. Free re-use in support of 
new art doesn't really apply here.
Collagists/samplers do the opposite, they're out to make new art, are 
intent on transforming their  found content, so it does.
If an anthology editor claims to be an artist making art so he can 
use some stuff with a free re-use license on it for nothing, we can 
ask the judge about that if necessary. No different than borderline 
fair use claims and judgements now. Court wise, given our stated 
defining factors for free re-use, I think such disputes will be much 
easier to judge than most fair use cases are now.

>I've just been read the draft license and i think it is both well worded and
>highly practical.  One issue that is not acknowledged in the draft - or in
>the discussion - is the question of crediting original work. I can't decide
>whether I think this should be a requirement of all sampling, and certainly
>if someone is using many sources it could be a hassle, but there are
>certainly cases when I think it should be required, i.e. when a substantial
>portion of the original work is used as a substantial and identifiable
>portion of the authentically new work. It seems fair that the creator of the
>sampled work should benefit from being recognized as a key contributor to
>the audience's artistic enjoyment even if he/she does not ask a licensing
>Another question I have is based on the following scenario: someone uses a
>chapter of one of my books as a chapter in an anthology, and argues that the
>anthology is a collage and therefore represents fair use rather than a
>subversion of the need to license my writing for their book. The same
>example could hold true for a song off an album included in a mixtape that
>is undoubtedly a collage but which adds nothing new to the individual songs.
>How would these cases be judged?
>John Sobol
>Digitopia Blues - Race, Technology and the American Voice
>Banff Centre Press, 2002
>john at globalhood.net
>cc-sampling mailing list
>cc-sampling at lists.ibiblio.org
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