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

[Don Joyce <dj AT webbnet.com>]

Title: Re: [cc-sampling] artistic credit?

John,

To some of us who sample, it is a matter of artistic integrity to name our sources for many reasons, no matter how small the fragment (within reason, there is a hassle line at which work on attribution stops) but certainly in the case of large swipes, it's only polite...

Mainly, it's much better for collage art, as a widespread practice and process of amalgamation, to stay honest and transparent about its own construction in my opinion.  I would like to see the license reflect this larger, non-individualistic view of this nothing-to-hide art form by requiring simple attribution, as an etiquette the art espouses. If one doesn't want to for any reason, don't. There wont really be any knocks on their doors for breaching etiquette. But, on the other hand, if any free sample licensed artist is reused and unnamed, he could invoke his license and take the sampler to court and force them to attribute him as a source in their work, but nothing else. None of that "damages" stuff, please. But I think this license might, like a lot of licenses do, espouse etiquette.

Anthologies and compilations are not collages or partial uses by definition. It may be one chapter from a book in the anthology, or one song from an album on the compilation, but both are untransformed, and intact as created. The stated guidelines for free re-use mention "partial" and "transformed" as the defining factors for free re-use. In the unique case of collage, which can and has involved both large and small chunks of something else, and gone on to transform these chunks themselves to degrees ranging from totally to not at all, we devised the partial/transformed duality to apply to distinguishing collage from other partial uses like anthologies/compilations. This duality is judged in collaged work as a balance of factors present, similar to the way Fair Use is legally determined. A song on a compilation may be a "partial" usage (if one is convinced the concept album it comes from is the "whole,") but it is, as a track, untransformed on the compilation. In collage arts, if you use a "whole," it must be transformed to constitute anything new or different from the original intent of the work and the artist who made it (the transmitting goal of an anthology!), however if you use a fragment in collage, it need not necessarily be transformed at all. When a conceivable "whole" is incorporated into a collaged work, it must be seen to be trasnsformed because it has not automatically met the "partial" requirement. If something obviously meets the "partial" requirement, it need not "transform" the source fragments because fragmentation is transforming.

 

All in all, the purpose of sampling/collage is to transform it's contents via a new context altogether. Anthologies and compilations have an opposite intent (just as bootleggers and counterfeiters have an opposite intent) and that is to represent its contents as unchanged from the original, they are marketing the appeal of the unmanipulated original in a new context that contains nothing new. There could be borderline anthology or compilation concepts also intending to be reactive or creative with the work they contain, thus confusing this normally easy identification between art and reproduction, and those are the cases that may end up in court, where this dual factor balance in the license will be argued both ways enthusiastically, I'm sure.

Are we supposed to think of things that will eliminate all future court cases? Or something that works pretty well to make this difference in re-use clear in the vast majority of real examples as we know them.

 

Is it a "transformed and/or partial re-use?" is the whole answer in a nutshell with a question mark.

Anthology/compilation editors generally work hard to not transform the various materials they're re-presenting. This is always pretty obvious in the usual proof of pudding ways. Free re-use in support of new art doesn't really apply here.

Collagists/samplers do the opposite, they're out to make new art, are intent on transforming their  found content, so it does.

If an anthology editor claims to be an artist making art so he can use some stuff with a free re-use license on it for nothing, we can ask the judge about that if necessary. No different than borderline fair use claims and judgements now. Court wise, given our stated defining factors for free re-use, I think such disputes will be much easier to judge than most fair use cases are now.

DJ         

> Hi,
>
> I've just been read the draft license and i think it is both well
> worded and
> highly practical.  One issue that is not acknowledged in the
> draft - or in
> the discussion - is the question of crediting original work. I can't
> decide
> whether I think this should be a requirement of all sampling, and
> certainly
> if someone is using many sources it could be a hassle, but there
> are
> certainly cases when I think it should be required, i.e. when a
> substantial
> portion of the original work is used as a substantial and
> identifiable
> portion of the authentically new work. It seems fair that the creator
> of the
> sampled work should benefit from being recognized as a key contributor
> to
> the audience's artistic enjoyment even if he/she does not ask a
> licensing
> fee.
>
> Another question I have is based on the following scenario: someone
> uses a
> chapter of one of my books as a chapter in an anthology, and argues
> that the
> anthology is a collage and therefore represents fair use rather than
> a
> subversion of the need to license my writing for their book. The
> same
> example could hold true for a song off an album included in a mixtape
> that
> is undoubtedly a collage but which adds nothing new to the individual
> songs.
> How would these cases be judged?
>
> Cheers,
> John Sobol
>
> Digitopia Blues - Race, Technology and the American Voice
> Banff Centre Press, 2002
>
> john AT globalhood.net
>
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