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

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

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

This was supposed to go to the main list but did not make it in. So I am forwarding it in. Hope that is okay!

mark

Guys,

I forgot to copy you on this.

Cathy

 -----Original Message-----
From: Kirkman, Catherine
Sent: Sat May 24 18:23:27 2003
To:     'Glenn Otis Brown'
Cc:   Raina, Kalinda
Subject:  RE: [cc-sampling] Copyright of Derivative Work


Glenn,

I have some thoughts on the various comments that I have seen so far.  I am sending them to you rather than replying to the list, as I'm not sure how the list is working. I am only seeing emails from you and the Negativland guys responding to snippets of emails sent by others on the list.  So I am sending my comments to you, and we can go from there.  Feel free to forward in whole or in part as appropriate. 

The caveat for any public distribution is: 

This is not intended as individual legal advice and does not create any attorney-client relationship.  These comments reflect our preliminary judgment that is expressed in a short-hand manner, is subject to revision and is not for reliance by any party.

1.  Original of Collage

b.      to distribute copies or phonorecords of, display publicly,
>>perform publicly, and perform publicly by means of a digital audio
>>transmission, Your Derivative Work(s).
>
>Do you need to add language that would allow one to sell their
>original Derivative Work?
>
>Meaning, if I made a collage and wanted to sell it at a gallery, it
>doesn't seem like this licence would permit it. It would allow me to
>sell *copies* of my collage, but doesn't say anything about the
>original.

Although this may seem counter-intuitive, the definition of "copy" in the copyright act includes the original.  The right to sell copies of the derivative work includes the right to sell the original copy.  So this language covers sale of the original collage as well as any copies that may be made.

DJ - OK, good.

MH - we still need language that makes that point  clear, though. As it is counter-intuitive to non-lawyers..

> Under the copyright act, copies and phonorecords are "material
> objects . . . in which a work is fixed".  The definition
> expressly states that the term "copies" or
> "phonorecords" includes the material object in which the
> work is first fixed.
>
> Also, we don't need to say "sell" explicitly because the
> copyright act makes clear this is a type of distribution.  If we
> want to expressly mention this, we should include the full language
> (i.e., "by sale or other transfer of ownership, or by rental,
> lease or lending".  We should also then make this change in
> the main CC license as this is not a sampling-specific
> issue.

DJ - Don't know.

> 2.  Copyrighting of 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 appears to be a statement regarding the scope of copyright
> protection for a derivative work.  I would prefer that we do not
> include language in the license to characterize the law, as it is not
> necessary and possibly confusing.  This probably belongs in the
> explanatory FAQ for the license.

DJ - I think we may want a bit of law characterization here, too, at least in this license, as a means of characterizing our distinction from the law's usual habits...

MH - I agree. But if that is unworkable for some reason, then lets get this into the FAQ.

>  
>
> Also, in terms of drafting, to say it "can be copyrighted"
> is inaccurate because copyright automatically adheres - this would be
> more accurate if it referenced registration.  Although the clause
> does not mention ownership, maybe it was directed at the fact that the
> licensee owns the copyright in the derivative work, subject to the
> underlying rights of the licensor. 
>
> Usually a license discusses ownership rights if it is going to vary
> the rights that arise under the law, unless it desires merely to
> confirm the respective rights of the parties under the law. 
> Under the law the creator of the derivative work owns copyright in it,
> but not to the underlying work upon which it is based.  It is not
> possible to validly claim copyright in the works you are sampling. 
> If you do, you will have problems, such as due to perpetrating a fraud
> on the Copyright Office in claiming copyright in parts of the work you
> do not own, but you will not dispossess the lawful owner of his
> copyright.
> Since we are not varying the default situation under the law, it is
> not necessary to have a statement about ownership rights, and as a
> result we do not have this in the main CC license.  We might add
> something to the FAQ about this.  If we want to add something to
> the license to confirm the default ownership rights of the parties, I
> would suggest that it say something like:  "You own the
> copyright in Your Derivative Work(s) subject to the underlying rights
> of the Licensor in the Work licensed hereunder."  If so, we
> should implement this in the main CC license generally as this is not
> a sampling-specific issue.

DJ - Ok, See Cathy, I completely disagree with this advice on the grounds of undoubtedly harried legalistic timidity. I know it's messy, but it's a necessary mess, to take whatever stand towards the inhibitory influence of any third party copyright claims to sampling/collage arts, and do it in the license itself. In other words, I'm thinking of this license as a kind of voluntary,

fair use-bestowing license, directed at those who want to protect art's free access to art, not as a protection for any artist involved whenever the two interests conflict. Allowing third party prior copyrights to maintain control of the reuse fate of a new work greatly weakens, if not eliminates, any such license intent for the further fair use of this work.

And still wondering about "Fair Use For Collage" - whether we might, in some way, declare our own self-defined "fair use" for any partial reuse of this CC licensed work, partial fair use of BOTH this entire new work and whatever it happens to be made out of, which may still be copyrighted outside this new work, but no longer is a copyright controlled appearance here in the new collage that is, guess what, reusing previously copyrighted work to exist. And I wouldn't care if this new collaged reuse is a dance record that hits the top of the pops or not, there would be no strings attached back to the fragmented content's copyrights. Would such a reworking of the "derivative" definition for our purposes of artistic reuse have any more authority in a voluntary license if we connected it to something well established that already does exactly this, like fair use?

 If we don't incorporate this inherently backfiring  ("But what about the copyrights?") problem into the free reuse license's awareness, it will be the license that furthers the mess...

MH - good points and I look forward to the response!

DJ - Also, by the way, none of this actually does anything towards the fact that most original collages will be filled with previously copyrighted contents forever, most of which will be firmly sticking with their traditional copyright licenses only with their traditional ability to restrain collage reuses, but most of the collaged works this CC license may adorn will remain a mass of unauthorized samples themselves in the first place, thus making a suit against a third party sampler of these samples seem an easy fly swat compared to the need to kill and crush the original collagist who is, indeed, infringing on existing copyright, not sampling from those rare, CC licensed works... Who or what is protecting anyone's right to freely collage things in the first place? Here again, I like the ring of "fair use."

In the end I guess, I'm trying to get to a revision of copyright's traditional concept of all-encompassing control, a revision in which distinctly different regs would apply to the reuse of the whole vs partial/transformed reuses in the creation of something new. A simply necessary distinction that must be made, regarding future copyright control over the progress of art/ideas/everything.

I know what you'll say, it just ain't legal to unilaterally declare fair use. But think harder, it must be!

By the way, can you declare something you made to be in the public domain and make it stick even though copyright is automatic?

 

> 3.  Advertising Examples
>
> "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."
>
> The example about the movie trailer would fall under the exception
> that permits use of the Work in advertising about the Derivative
> Work.  The movie is the derivative work, and the trailer is
> advertising and promotion for it.  This was actually the
> situation that we were trying to cover by the language.
>  
> 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?
>
>
> It is correct that you can't use the original song in advertising. 
> If you sample the original song to create a new song, as suggested
> above, you can't use the sampled parts of the original song in
> advertising, unless it is to advertise or promote the new song. 
> So I don't see how you get around the advertising exception in this
> example.

DJ - Excellent, works perfectly.

 

>  
>
> Possibly this shows that the advertising exclusion is somewhat
> confusing.  We will have to see what other comments we get.
>
>  
> -----Original Message-----
> From: Glenn Otis Brown [mailto:glenn AT creativecommons.org]
> Sent: Saturday, May 24, 2003 4:08 PM
> To: Glenn Otis Brown; Sarah Brown; cc-sampling AT lists.ibiblio.org
> Subject: Re: [cc-sampling] Copyright of 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."
>
> > 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. 
>
> On second thought, that language is probably great as is.  Will
> do some
> homework . . .
>
>
>
>
> >
> > 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)
> > _______________________________________________
> > cc-sampling mailing list
> > cc-sampling AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> >
> ---------------------
> Glenn Otis Brown
> Executive Director
> Creative Commons
> glenn AT creativecommons.org
> +1.650.723.7572 (telephone)
> +1.415.336.1433 (mobile)
> _______________________________________________
> cc-sampling mailing list
> cc-sampling AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-sampling

-- 

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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.