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

["Christopher M. Kelty" <ckelty AT rice.edu>]

As I said, I have great sympathy with the sentiment of preventing
advertising re-use, but in the spirit of paid speech, let me play
devil's advocate <grin>:

1.  It seems to me that copyright licensing is not the place to make
    the distinction between art and advertising.  Copyright law might
    be.  Free software licenses exist (and now, content licenses) to
    give people back the rights they have been denied under copyright
    law, not to further enumerate new proscriptions against specific
    actors.  It well may be that the distinction between ads and art is
    obvious to everyone, but denying rights to some on the basis
    that one finds their activities reprehensible is not what
    licensing contracts are for.  It's what law and power and money
    and influence are for. It's why not having it on your side sucks
    so much.

2.  Making such a distinction in the license might scare off plenty of
    legitimate artistic uses.  Some artists, it is clear, cannot, or
    deliberately refuse, to distinuish the seller from the sale, and
    therefore might see themselves as commercial/advertising entities.
    I know a few people (and can imagine others) who may well want to
    produce collage art, which they intend to give away for free in
    order to promote themselves or their firm/non-profit/studio/cause,
    and who might read the anti-advert clause as preventing them from
    doing so.  Do we mean to exclude all acts of promotion of any
    kind, or only those perpetrated by (large?) for-profit
    corporations?  Put differently, can we articulate clearly which
    *activities* we would prevent rather than which *motives* we think
    are compromised?

3.  For instance, it's one thing to say that an ad is obvious because
    there is a contract stating that the work is produced by an ad
    agency for another entity.  It is quite another (less legal, more
    common-sensical) to say that its "intent" or "ulterior motive" is
    obvious.  As far as I can tell, copyright law only distinguishes
    between a work made by an individual, and a work made for hire.
    Does it allow one, legally, to distinguish between a work made for
    the purpose of promoting Pepsi and a work made for the purpose of
    promoting the glory of human creativity?

3a. Another suggestion: If we want to try to prevent the former, then
    maybe we need is to deny re-use rights to "works for hire"?
    e.g. "The above rights are granted in all cases except those where
    the work is done for hire." The down side is that this would also
    prevent any contribution to a collective work (like a movie or a
    compilation) from re-use.  Its advantage is that it responds
    directly to what copyright law enumerates. 

4.  I still think the attribution clause or the share alike clause
    would achieve 99% of what we seek to prevent, especially if that
    means re-use by large for-profit corporations.  Attribution poses
    a creative problem that most firms can't deal with (i.e. how do we give
    credit in a commercial, or in a sound bite or on a web banner or
    whatever); share alike frees their re-used content, which they
    definitely don't want.  I think it's worth further discussion...

thoughts?

ck










On Mon, May 26, 2003 at 09:39:03PM -0700, Don Joyce wrote:
> 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