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

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  • From: mark / negativland <markhosler AT charter.net>
  • To: Don Joyce <dj AT webbnet.com>, <cc-sampling AT lists.ibiblio.org>
  • Cc:
  • Subject: [cc-sampling] retracting THE ANTI-ADVERTISING CLAUSE?? say it ain't so.
  • Date: Sat, 24 May 2003 22:21:36 -0700

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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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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