Development of the Creative Commons Sampling license (or license option)

[mark / negativland <markhosler AT charter.net>]

Title: retracting THE ANTI-ADVERTISING CLAUSE?? say it ain't

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.
> DJ
> Negativland

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...

Mark

> ------------------
> 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.
> --Glenn
>
> 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.
> DJ
>
>
>
>
>
>
>
>
> > 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
> > ---------------------
> > Glenn Otis Brown
> > Executive Director
> > Creative Commons
> > glenn AT creativecommons.org
> > +1.650.723.7572 (telephone)
> > +1.415.336.1433 (mobile)
> > _______________________________________________
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> > http://lists.ibiblio.org/mailman/listinfo/cc-sampling
>
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mark / negativland <markhosler AT charter.net>


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