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

[Don Joyce <dj AT webbnet.com>]

Title: Re: [cc-sampling] Copyright of Derivative Work

> "Are there any other problems this
> point raises? Can we imagine any
> scenario in which the Sampler deserves to claim some measure
> of

protection in the Sampled material as incorporated into the new song?"

Yes, it is the protection any other original creation gets now.

The operative magic in collage of any kind is to combine and recombine the found, familiar and unfamiliar, to create a new, physical and emotional "whole," which is obviously more than any simple sum of its parts can produce. Collaged works in all media are all about mixing contexts, familiar and unfamiliar, within a whole new context that is an original work of fused disparates, if that's a word.  So, in theory, I'd say the sampler has the same right any copyrighter of anything original has, to copyright their original work entirely in their own name. This is the only way it can continue to be done, just like anything else that's original, and for the same reasons.

I must go on and on about this.

 

This all gets back to the "third party" claims issue in chains of reuse - (actually, a rare and unusual occurrence compared to all the one-time reuses of one source by modern art and business, I believe)

At any rate, we should be open to the idea that whatever mere wording we come up with, there is the distinct possibility, likelyhood, and full expectation that our license, by trying to do the most good for the most art out there, and by putting the needs of art-process before and above the assumed and habitual commercial "needs" of individuals in the progress of art, it nevertheless may also conflict with existing, much more minority-focused laws, such as existing copyrights for instance. When it comes to present copyright holders, this wont be a harmony device.

Some of those prohibitive copyright owners are always going to be appearing in some collage artist's work, from paper paste-ups, to audio sampling, to multi-film combine edits, to Andy Warhol, to your own website, to the unnameable future of the human artistic imagination and what it may be contemplating then.

No one seems to have a clearly satisfying solution to this obvious third party conflict with present law that will, indeed come to blows around our CC license if we don't at least attempt to account for it in the license wording.

I come to this from art, so my proposed solution is utopian good sense but highly improbable and unworkable as hell.

 

The obvious, best-for-art solution is to declare that any work bearing our free-reuse CC license automatically abrogates any previous claims of copyright ownership which may be held by any of the reused content. The CC license simply says,

 "By all the rules of art, I am a new and original work of art, sorry as I may or may not be, and all 'rights' of ownership over this entire new work created by me alone, are mine, and I declare I don't want any control over its partial reuse, except in advertising."

Bravo.

This is only saying about CC works what copyright now says about so-called "original" new works (actually "original" art, especially popular art, almost always means a polite degree of divergence from something one is copying!) So the CC license says this relatively new kind of new work is ALSO an "original" work in every important-to-art way, and fully deserves its attempt to exist, regardless of the claims of the content within it.

The possible harmful effects of this on society are, of course, exaggerated. First, this whole reuse situation only occurs once or twice, if it ever happens at all, in the entire life of your average traditional copyright holder (unless you happen to be James Brown or Casey Kasem or Julie Andrews or one of those other extremely rich-already and tiny minority in show biz who have become sampling celebrities of some sort.) The vast majority of copyrighted works will never encounter this phenomenon of reuse at all, ever... We're talking about dangers that will never be dangers to 99.9% of all copyrights, iron tight forever.  To happen to lose one's copyright control in this one, specific type of reuse (when a new work is created) will not frighten those celebrity's bankers much since they still retain their traditional copyright control over all other reuses of their intact work outside of these silly art appropriations, all commercial reuses, etc. These rental and compilation reuses are all any artist ever intends to profit from when they get into this biz, and they would continue to when sampling is free. But in a sampled context, it's not about "them" anymore, it's partly about a part of "them" in a whole new context.

 

But anyway, if this appears to be a devastating hardship of some kind on those freely sampled, the number of devastating reuses going on which result in a new work are comparitively few. Collaged art forms wreck nothing crucial to anyone's expected copyright income, why it's practically harmless! The present sample clearance depts. at big music factories are the only ones I can think of who might want to disagree with this, to whom I would say,

 

"Hey music owners, just like the Israeli settlements, you have over extended your opportunistic greed for every conceivable form of income which might be derived from copyrights, now including sampling. You actually don't deserve that extra private income when it routinely inhibits, prevents, and/or censors the creation of new art, you know, the way sampling clearance routinely does?

So, to accommodate our better instincts, the Israelis will have to pull out of those presumptuous settlements and you will have to pull out of that presumptuous music sample clearing business. It's an insult to free _expression_, an unforeseen luxury, it's not the economic plan of any artist to be sampled, (can you imagine counting on it?) and any sampling income is a surprise, unearned, and quite unnecessary for their continuing sustenance as a self-contained artist. In other words, free sampling does not represent a significant threat to them or their career by being free. And as I said, if it is a threat to ego in some cases, that's free _expression_ for you, big deal, get used to it, and sampling rarely occurs to any individual artist, period, anyway. But overall, times have changed. Art is the car and you are the blacksmith. And we're building a sample freeway right through your house. Thank you."

 

That's what I'd say.

Also, a thought: Negativland has been using the motto: "Fair Use For Collage" as a pathetically obtuse rallying cry for this issue for some time. ( ha ha, see any placards in the street saying this yet?) What this CC license is actually trying to allow is exactly the same as "fair use for collage" implies. But simple as the motto is, it is perhaps somewhat clearer to artists and others what "fair use" means in general as law (no payment or permission required to reuse otherwise copyrighted material) and the legal condition of fair use is exactly what we're after with the CC license, in essence, redefining our own fair use standards. These are MUCH expanded fair use rights from what  is now found in legal fair use, but the CC "conditions" might well be called "fair use" since it really is just an expansion of that very concept, in this case as applied to collage arts only.

Most importantly, Fair Use, which is real and already exists and is in effect right now within copyright law, is ALREADY a working law which abrogates any previous copyright claims when the new work is a legally defined "fair use" of that copyrighted material.

Fair Use is the whole precedent in law which says you CAN abrogate former copyrights in a new work for a good reason. I rank free _expression_ right up there with free speech, and art represents both in society. Maybe we should be associating these CC license conditions with artistic "fair use" or something, and just hope for the best as to how we're ever going to get third party constraints out of these otherwise fair use works with a CC license.  

Second, Under my proposal, the CC license would then, of course, be attempting to abrogate existing contract law without the help of Congress. Sometimes the Supreme Court does this too, and that's where this would end up, defending art against the law in the Supreme Court, if my proposal is followed. We can copyright the trial transcript and sell it as a parody to cover expenses.

- But worth it just for the publicity on our points? You bet! Now, who's going to pay for it?

But any formula I've heard to accommodate traditional copyright constraints within a new work that the reused copyright holder had no hand in making, if that third party can control reuse of this new work, it either makes the new work just as impossible to sample from as anything else, requiring payment to and permission from the elements within the new work, or it's going to dissuade against the possible creation of such works in the first place, just like traditional copyright does now. See? There is no free lunch after all. The CC free lunch license becomes rather meaningless as a true "change" of any kind. All the same old problems remain under this license which is intended to escape them and feed the arts for nothing.

Let's face it, it's a bold-faced paradox to try to give away a whole bunch of something for reuse, but you will may have to pay for and get the permission of the individual reused things in that bunch, if you actually want to reuse some part of this bunch yourself in anything new. Sounds like bait & switch to me. So to me, this would be phantom "freedom," unless the CC license actually attempts to actually supersede the validity of any claims of any of its content's copyrights, on the basis of now BEING a new and original work itself, with a new and unrelated "owner." I would want the license to be an expansion of the fair use concept to these particular new art practices, just like Fair Use now extends to parody, news, commentary, educational reuses, etc. The term, fair use, might help congeal the general public's understanding of this free-reuse license, since  it's virtually the same thing.

And third, this third party claims issue (an issue of probably immediate contention from the law community, being addicted to the sanctity of contract law ubber alles as they are) is the uncracked nut of legal viability in this particular CC license. We must confront how this third party issue may play out as a legal argument IF we were to claim ourselves to be a license for artistic fair use, which, like news or parody, also needs to be excluded from its incorporated copyrights and their control over the fate of the work.

Maybe, "We Are All Parody!"  How's that for a placard?

So far, I fear I see us tip toeing away from directly confronting this third party control issue in collaged work because it does appear impossible to include it and still be claiming to be giving this work away to free reuse, and trying to abrogate such third party claims just means our license will be dismissed as utopian good sense but highly improbable and unworkable as hell. Income hustling will win.

And if I may be even more provocateering, I would be very curious to hear from our legal eagles describing to all of us what we have in store in terms of making this license "stick" in any court today, with and without the third party abrogation concept?

Like, I have no idea whether applying this CC licence to our CDs of audio collage - the contents of which are probably heavily copyrighted, some of them really old, all the way up to recent, so many we decided to just make it, sell it so we can continue this expensive art music production game for the ages, and worry about the preventative copyrights involved later, or else this stuff will never get made at all - whether that CC free use insignia on this work of "illegal" appropriation, which is technically "infinging" on existing copyrights, (after all, literally everything one might find out there to reuse is already copyrighted and that wont change), will this CC logo actually have the force of say, my last will & testement, in criminal art court where a bit of content is suing either us, for reusing them as fair use in the first place, and/or suing a third party who has sampled from our illegal sampling and which also includes a bit of the suing content's work? What will the CC license get me in terms of ... respect?

DJ         

 

      

 

> On Fri, 23 May 2003 11:29:00 -0400,
> "Sarah Brown"
> <sbrown AT old.law.columbia.edu> said:
> > >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.
> >
> > What happens to the copyright of the Derivative Work?
> >
> > It seems you may need some language that says something like
> "The
> > Derivative Work as a whole can be copyrighted, however only
> those
> > aspects that are not a part of the original are
> protected."
>
> This is another really good point.  Here's another potential
> problem that
> could happen under the draft as it's written now (I think so,
> anyway):  I
> use a distinctive trumpet riff from your licensed song in mine,
> then
> copyright my song. The next time someone tries to sample that
> trumpet
> riff, I sue them for copyright. 
> (The nightmare may not be quite that
> simple, but it's scary enough that we want to make sure to avoid
> it.)
>
> Sarah's proposal above is nice, though I'm not sure if as-worded it
> would
> get around the example above. In any case, it's a big improvement
> that
> we'll put it in the "duly noted" column.  Maybe we
> could put up an
> "annotated" version of the original draft language up on our
> site, so
> people can track changes?
> Are there any other problems this point
> raises? Can we imagine any
> scenario in which the Sampler deserves to claim some measure
> of
> protection in the Sampled material as
> incorporated into the new song?
>
> Glenn
>
> >
> > If you don't, would something like this be able to happen?
> >
> > 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?
> ---------------------
> 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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