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

[Don Joyce <dj AT webbnet.com>]

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

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

Sorry all, this is so long below, and I know briefness is appreciated, so skip this if your mind is all made up. But otherwise, we are speculating at length below on the attribution option (to make it mandatory or not) and if we don't analyze it here and now, where and when? Also there appears to be not much if any revision of our other license language suggested on the list so far, and maybe we should concern ourselves with the two main concerns of contention so far - attribution option and advertising option.

DJ

Much more below.

> >    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:

> DJ -I think there would be little if any
> conflict around this issue in reality. But if there is, yes, I would
> foresee a threatening letter as step one in enforcement, and perhaps
> that's the end of it, but not necessarily, depending on the situation.
> Yes it is silly, isn't it? (Silliness is often the result when law
> confronts art in my experience.) I really wouldn't expect this
> attribution rule to be enforced against whatever free re-use
> infringers, as it's hardly crucial to anything, least of all
> the quality of the art work at hand, and the artists who splash this
> license on their work are already of a mind to let things happen... 
> But this does not mean that source attribution is less than meaningful
> to do in modern appropriative works, and that's what mandatory
> attribution would be encouraging with a power to enforce that is
> probably rarely if ever used. (Who is going to mount an expensive
> court trial to defend this license regulation when winning get's one
> so little? But it might be very important to someone's
> case...)

> The point is to encourage the already
> extant practice of source attribution, especially in those vast
> majority of free re-uses where it doesn't matter at all to the
> re-using artist whether they do this or not. We already do it today on
> all our releases as a matter of choice, even though it actually puts
> us in a position of revealing stuff that could get us collared by the
> art police for copyright infringement. That's how important we think
> it is to do this, as art "thieves."

>  Put simply, it is a matter of honor
> among thieves. We do this as a form of respect for the original
> integrity of our source, (even when we're trashing them), as an open
> admission that this element is found and not made by us, as a nod to
> the gods of chance that we found or captured it, and as an open
> acknowledgement that there is nothing wrong with what we're
> doing (even though legally, there IS!) Without an etiquette of
> attribution, I remind you, you will not be able to tell in many, many
> works, what is originated by the re-using artist and what is not
> within their appropriative work. I think it's only right to want to
> know this for accurate analysis and criticism, for art posterity's
> sake, and this is what this license would be suggesting about
> appropriative arts.

>   - 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".

DJ - As far as I know art history, this issue of who is the  "author" of a work first came up in the early part of the last century in the form of surrealist "detournment" and, most importantly, Dada. These early examples didn't do source attribution because they invented art appropriation and were in the business of forming, not adhering, to art precedent.

Now, all these "different" philosophical and political notions you mention which deal with the significance of "author" depending on context, tradition, and mores of the community - I don't see it, at least in modern art. The only significance of "author" in relation to a work is, who made it? I see no context or community in which people think the content made the art rather than the artist who generated it, no matter how it was accomplished. So all works, no matter how appropriative, have a clear and undisputed "author" in order to exist. Do they deserve to exist is another question, which copyright law routinely says "no" to.

The significance of "author" is a non-issue in today's creativity. The author of whatever art amalgamation is always evident, the real debate revolves (in a more unspoken way) around the question, "Is it a form of "original" creativity or not?"

            

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

DJ - I have somewhat the same feeling about collage, it's a more "valid" art with attribution.

It can never be accused of mere plagiarism for instance, an accusation that's all too easy in some kinds of work without honest attribution. Attribution means no matter how similar this new work is to an "original" it draws from, it is obviously not attempting to pull that particular wool of somebody else's talent over your eyes. (Or ears.) Attributing samples to their sources is a great way for an artist to actually be saying, "This is mine because I admit all theft" among other things. Strangely, this is how all art works and why appropriative arts, in particular, are so adverse to commercial law in general which is all about the "need" to prohibit artistic theft in the first place. Silly, isn't it?

> 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'".

DJ - Many of Dada's early art re-uses (like the Mona Lisa print with a mustache by Duchamp) were out to shock, (that damn, trouble making art again!) and thus using very well known sources the artist hardly had to identify for the public. Their work wouldn't have actually worked if the source was not recognized on sight by all. The important thing is not who Duchamp used, but why is this apparent "non-work" now worth a whole lot of money and hanging in a high security, laser guarded motion detecting museum somewhere?

Overall, I think you really mean, how "original" is this author, Duchamp, who just draws a mustache on a paper print of the Mona Lisa and calls it art? The hieriarchy of art opinion on this ranges from highly and thrillingly original to nearly meaningless, untalented, and at the level of rest room graffiti. That's art for you, it's all about not resolving such stuff. I, of course, am aligned with the former opinion, and given the historical context, (out to shock with no existing precedent) do not fault Duchamp for not naming DeVinci as a source on his work because source attribution just obviously wasn't necessary to any appreciation of the work - everyone already knew what the source was quite intentionally.

This might also be true today where it isn't necessary to list a use of Michael Jackson if the well-known song fragment is simply, obviously him. We would list him anyway. But more often, this automatic familiarity is not at all present in modern collage works, the samples being obscured or unrecognizable, the sources mutilated into other forms, etc. Sampling is trying to disguise its sources in the work as often as it may be revealing them in the work, doing either for purposes of creating the work's particular qualities they're after. This is all fine and necessary, but our license for a new century of appropriative arts might indicate that listing known sources

is an otherwise honorable way to make new art out of old, keeping the provenance chain of identification, acknowledging these crucial components as part of the actual process within appropriative works, and not catering to an intentional hiding of sources in collage, as is being done today for fear of prosecution!

(By the way, some of our own, long ago and casually collected fragments of various media are often of "unknown" origin, and thus cannot be listed anyway)

So asking for attribution is also a habit-breaking concept designed for an era in which, hopefully, one will NOT be prosecuted for collage... you know, relax, it's ok to attribute sources. Not making it a "mandatory" choice actually indicates to me it may still be something to fear, which it is not with the intent of this license. This litigious fear is something I'm very used to encountering in our own work, and it's a fear which will still be in effect after this license appears. But this license goes against habitual thinking to a degree that may require some kind of double-take in the brain which at least produces an opportunity to break out of the usual thinking this license is all about transcending otherwise.  Mandatory attribution does that for me. It's an attention getter that is very useful. Gotta go to the faq on this point!  

And remember, this license must be doing it's thing without the general benefits of everyone who adopts it being party to this discussion, and it must include the elaborate points we're making in a very brief paragraph. The paragraph itself is not going to elucidate all this background thinking at all, so the license wording, as a short, simple statement, must be making some of these background points, such as the suggested usefulness of attribution in all re-use works, in a sharp, surgical thrust of specific regs that apply and actually promote all this background thinking.

Everyone's democratic tendencies immediately reacts negatively to the idea of "no choice" in this matter of attribution. It will certainly be everyone's immediate reaction who has not thought much about it. But while the mandatory attribution idea is a possible immediate turn-off, by BEING there, it does indicate there might be good art reasons for doing it all the time. How else can this counter-intuitive suggestion about an artist's private process be actually brought to general consciousness, if not here? Why bring it up at all? If you think it's not desirable to associate this etiquette with the other rights given, then so be it, I can understand that too. ( I do associate them as closely intertwined acts in the whole process - not necessary to do it, but always better when it is done without any exception I know of) But if we like the unusual concept (I do) of mandatory attribution, I don't think we should necessarily try to escape the idea that this new license is also a place to advocate, (harmlessly, in my opinion) because what the license is about is brand new thinking territory for many, many habit-bound, fully copyrighted folks. And I think I've indicated how the "mandatory" rule on attribution would not be actually coercive in practice, since let me count the ways an artist could not list a name or names if they're determined not to. It's only art etiquette.

 

>  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.

DJ - We will not be requiring point sizes in the "credits" of appropriative works, just that sources be mentioned somewhere in the package, you pick the place, you pick the size. Require a magnifying glass if you must, but you'll just be seen as having something to hide. As you are when you don't attribute your sources at all. But that hiding is understandable when you could get sued for doing it. In the virtual world this license foresees, it is not illegal (at least under our license) and this self-protective motivation disappears. Can you give me a realistic example where a collage artist of any kind in any medium would have to care about publicly noting where he/she got his/her samples if they had no fear of copyright infringement? ( sometimes I just say "CBS" - the actual owners anyway, when for some reason I don't want to name (or don't know the name of) the TV show, the voice, or whatever. But naming CBS is also a fine enough clue as to what this thing consists of for me. I'm satisfied, in practice, with listing "CBS" for any sample taken from that network's broadcasts. On the other hand, when we use other's music, we'll name the artist, not the record label. So with this kind of attribution flexibility in play, (becoming social mores) I want to know what artist would object to mandatory attribution under this otherwise free re-use license, and for what reason?

Anxiously await your scenario. (We'll have a whole stage play here, in no time!)

And yes, plain old perverse eccentricity, something artists are also sometimes known for, will apply as a possible exception. Someone is just not going to list sources, just because a license says they should. Fuck them. Where's beer? But why would this artist REALLY care about attribution when she/he is sober?

----PARADOX AHEAD----

I presume since our own work will sport this license, and I am listing something like "CBS," the free-reuser of our work under this license will still have to clear my CBS sample with CBS lawyers and their license (and it wont be free if they let you use it) if the re-user wants that CBS section in their re-use. Not to mention you will be tipping them off that their property also appears in my work, your source, and I then get sued while you get prevented and we're both dead dogs.

I fear the "freeing up" this license intends to allow will, in actuality, be dead on arrival for some time to come, due to counter claims by content elements still under traditional copyrights. Our license is not mentioned over there. They will pursue their rights. Everybody has to start using our license for it to really change the presently repressive copyright situation that can, indeed, go on preventing anyone from using this license as it was intended. Yes, this only applies to that variety of new works that are sampling from works that also sample, but do you realize how much new pop mainstream music outside of rap and hip hop's sample mongering, for instance, now includes samples of other music? Anyone collaging modern musics, (exactly what I'm doing at the moment) is extremely likey to be at least 2nd in the original sample's chain of re-use in new works these days. And all those "free" samples are internally copyrighted by someone else, or so they claim. 

----PARADOX OVER-------   

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

DJ - Well, ok, but it seems like little enough to ask a re-user to do (list sources, please) in this contractual license, in exchange for allowing any free re-use of the material itself in new appropriative works, and totally without fear of prevention, censorship, or expense for the re-user. That's playing with cultural meaning too. I'd gladly list my known sources to have that opening to interference-free sources in effect.

PS - And of course by claiming you don't know the source, (a reality of memory skip in some instances) you can also always avoid naming something specific as a source. Sin of omission. Can't be stopped. The ultimate private protection from our annoying license.

Really, we're just trying to start a trend with the license, not start throwing us all back into courts that don't understand us. - Do what thou wilt, you know what the license you're freely plundering from thinks. It's all just a harmless art thing, really, and nobody will need a lawyer to live with this.

> 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.

DJ -No, let's "require" it, and then not care about prosecuting sins of omission at all. Hey, this is me, I am exposing and satirizing those cultural copyright trends right now with this idea for mandatory attribution in a license! Ha, Ha, silly isn't it? A mandatory regulation that costs nothing for anyone, makes nothing for anyone, but is intrinsic to the art process itself, and everyone who does it knows this.  

and I repeat,   

> >    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.

DJ - That's too long for copyright to last, by the way. Sure, I guess etiquette is too whimsical to describe what I mean (but it got your attention). On the other hand, apart from Miss Manner's evolutionary grasp for better ratings within her lifetime, I consider it a matter of timeless professional etiquette, like lawyers and doctors keeping confidentiality, to reveal the sources appearing in your art, particularly when it's other art you're using. I don't really think this attitude was ever out of fine style whether it was always, sometimes, or never done, nor will it be out of style in the foreseeable future. I'm not going to care what stories Shakespeare raided to write his own, but if he went on to cop lines or paragraphs from them, he should let us know. He didn't let us know. We don't let anyone know. But if he did that, he should have let us know, and so should we if we do it. Why in the world not? It's also polite. I think this is what Miss Manners would say, too.

End for today, Sarah.

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