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

[Don Joyce <dj AT webbnet.com>]

Title: Re: [cc-sampling] Anti-advertising, what about attribu

Chris,

I see no problem with distinguishing between advertising reuse and artistic reuse (for the first time in reproduction law). It would solve a lot of ambivalence and smudgy thinking that doesn't quite discern the nature of this difference in terms of re-use, while everybody knows there certainly IS a difference in intent.  It's those differences, obvious in their respective intents to everyone, (is it art or is it an ad?) that are crucial to art reuse now because advertising has become the biggest of all re-users of existing culture. Art and advertising are using collage methods for exactly the same reason (the modern appeal of that method of expressing something) but one is free _expression_ and one is paid _expression_, one is self-determined by whatever artist made it and the other is not. And even when a completed, freely expressed work of solitary art is bought by an advertiser and put in their ad, that work in that advertising context ceases to be free _expression_ when in that specific context. Advertising infuses all elements inside it with an ulterior motive not present in original art works.

This ulterior motive behind the very existence of advertising art is not "quixotic" to me, it's the concrete and defining insincerity that underlies and characterizes all advertising to me, and it's why I don't want any of my art appearing there as free sampling unless I give them my permission to use it there. Otherwise, if free reuse extends to advertising, I can be made to speak for or support a commercial product, a political party, or some media content I may not actually endorse. I may be associated there with all kinds of consumerism external to my art I neither want nor am even made aware of. Attribution of my work there hardly makes it better, it just 'advertises" my helpless presence there and so that's even worse to contemplate! An appropriated use of my work without my permission or knowledge to advertise anything beyond myself represents a lie and a deceit, (Something I cannot claim to be the case in any free _expression_ appropriation, no matter how deceitfully it may choose to abuse me there) so I want special rules for reuse in the special case of advertising only, because it alone, as a unique category of potential art re-use, is hopelessly compromised and infected by this ever-present ulterior motive behind its existence, and it taints everything it touches with that stink. Art should not be automatically subject to this "re-spinning" in consumer propaganda unless it asks for it. But anyone else can re-spin my free re-use art anywhere they want to in their free _expression_.

I agree with the reasoning behind present copyright law that requires advertising to use payment and permission to acquire their content, even if it probably isn't the same reasoning I'm using at all, because their reasoning still extends to everybody else as well. But it works for me. In proposing universal free re-use of existing content in the creation of new works, I want the exclusion of advertising's right to do this in their new works. For them, the copyright law that restrains them from free appropriation would remain in effect, just as it is now.    

At any rate, as I see it, it would not be difficult to make either the case against free appropriation in advertising, or implement this particular surgical exclusion to otherwise universal free re-use in the arts. Easy because ads can be easily distinguished from free-_expression_ art by definition, and this technical division between art works and ad works is always clear and distinct (there are contracts for every ad made stating what agency made it and who it's made for - no question about what is and is not a commercial "ad," even in our commonly recognizing perception of them, (except for product placement and a few other new forms of "subliminal" advertising, but there are contracts on record for all those too), so all advertising re-users can remain distinct in law, be made accountable, and  their particular content re-uses kept separate from those in fine, freelance, or other art, which we certainly want to allow and don't have to be vigilant about at all.

DJ

> Regarding:
> https://lists.ibiblio.org/sympa/arc/cc-sampling/2003-May/000006.html
>
> Despite all sympathy with the ground for such an anti-advert
> proposal,
> I think I side with Glenn: policing the border between speech
> about
> art and speech about selling art seems quixotic to me.
>
> However, in the spirit of discussing "what it is FOR as opposed
> to
> what it is against," I ask: has there been consideration of
> including
> an attribution requirement (perhaps even a loosely defined, but
> deal-breaking one, using such words as "prominently
> displayed"
> "unmistakably identified" "megalomania-compliant"
> or whatever)?
>
> If the requirement to attribute in any use is strong enough, it's
> unlikely many ad agencies would see a benefit in simultaneously
> advertising Negativland and X-brand Widgets--and if they do, well,
> it's free advertising for you.  Naturally, such a clause would
> apply
> to artists as well, but liner notes, credits, acknowledgments and
> shout-outs seem a much more common aspect of art than of of
> advertising...
>
> Alternately, a share-alike clause could have the same effect,
> since
> most ad-agencies see their commercials as property just as much as
> what they advertise.  In a perfect world, this has the effect
> of
> making ads sample-able and transformable, but it potentially
> limits
> the number of people who will make use of the original, artist or
> not.
>
> perhaps there is another, as yet undiscovered way to achieve
> something
> similar, but I don't think it can rely on either a common-sense or
> a
> legal distinction between art and advertising, but instead on a
> clear
> understanding of what ad agencies and corporations actually want
> (besides your mind)-- so that you can deny them that.
>
> Christopher Kelty
>
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