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

[sbrown AT old.law.columbia.edu (Sarah Brown)]

On Sat, May 31, 2003 at 03:41:04AM -0700, Don Joyce wrote:

>    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

This scene is hilarious--I imagine the whole drama of a court
scene--Perry Mason questioning the sampler until he breaks down and
sobs "Yes, yes, I admit it. It was his picture of a puppy in my
collage. I knew it all along!". 

In reality, an attribution requirement would probably be enforced
through a threatning lawyer-letter, or perhaps it's actually not legal
language but just expressing an artist's preference--but it still
seems silly to me:

  - For attribution to have any meaning, it depends on the context,
tradition, and mores of the community it's viewed in. Different
diciplines, as well as artistic developments within these diciplines,
have varied philosophical and political notions of the significance of
the original "author". 

For a scholarly work, attribution is considered essential, meaningful
and useful: the work wouldn't be "valid" without attribution.

Often, in the tradition of visual art, the origin of a work is totally
irrelevent. A visual artist might sample another work's "form", but
for the artist, the "form" is irrelevent. Rather, the cultural context
and discourse surrounding a paticular "form" is what the artist is
"using". To force attribution would be to force a misunderstanding of
what's important--imagine if Duchamp was required to write on the back
of LHOOQ--"A shout out to DaVinci for providing me with the Mona
Lisa."  It would have focused critics and historian's attention *away*
from the meaning of this work, instead of towards it. Require
attribution and you change the way an artist must think--forcing every
artist to work as if they have been given a strange art-school
teacher's assingment: "Your artwork should consider color,
composition, surface, meaning and 'how to encorporate the attribution
requirement'".

In the medium of film, every person even remotely associated with the
creation must be mentioned in credits that viewers don't care about or
watch. Not the most enthusiastic fan that's seen a paticular film
hundreds of times, nor the critics and historians steeped in the
minutia of the medium, could care *at all* about the catering company
credit. The majority of a film's credits consist of entirely useless
information in relation to the film. Instead, these credits become
about the film process itself--its highly collaborative and commercial
nature, never divorced from the intoxicating intangability of
"fame". This medium created the hyper-rich-and-famous-celebrity, and
along with it, the process of attribution--it's the sole medium where
the Janitor's union negotiates so that their contract includes a
1-point increase in the font size of their names. In most films,
credit is a form of "payment" in every contract, specified beforehand
to an elaborate commercial negotiation.

So an artist might want to play with these cultural meanings. We
should let them use attribution as they see fit for their work.

To require attribution is very much "of the culture of the
moment". It's philosophical basis seems to echo copyright law--it's
mine, so I should get some degree of control how you use it. It
glorifies the role of the individual creator, focuses attention on the
"importance" of the work being traced back to the moment the work
becomes fixed in a tangible media (when in reality, it often lay
elsewhere). So we should let artists' go ahead and expose and satire
this cultural trend, but let's not require they do so.

>    I think this license might, like a lot of licenses do, espouse etiquette.

When copyright lasts the life of the author plus 70 years, we should
assume that ettiquette at the beginning of the copyright term has an
entirely different meaning than ettiquette at the end of a paticular
copyright term. Even Miss Manners changes her mind--and that's only in
a lifetime.

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