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

[Don Joyce <dj AT webbnet.com>]

Title: Re: advertising wording

David,

Well, I just think it's impossible to even adequately describe all possible advertising motifs in a license, and will only result in lots of very small, unread print. Just look at how many paragraphs you used to begin to describe all the devious new techniques! And I don't see how it can be boiled down to fundamental categories as it's all about synthesizing and hybridizing categories now (another form of collage!), as well as new ones we never heard of constantly joining the game. And as you note, many of them trying to be subliminal and not even consciously recognized as "advertising."

So I do believe getting into the details of what constitutes advertising in the world must be left to after the fact litigation of an accused infringement for re-use in advertising. Let them work it out in court on a case by case basis, as they occur. It wont be so sticky to deal with in court as they have plenty of time for details and the paper trail ALL advertising leaves in its hired gun wake, no matter what its technique, will virtually always make it easy to define what is paid advertising and what is not in court. Legally, it almost all comes down to the questions, "Are you an advertising agency and did you get paid by a client for your re-use of this sampling licenced work? (The advertising "form" it may be used in is actually irrelevant.) These are things that wont be able to be denied by ad agencies or their clients or other kinds of advertising entities, and these are all the facts needed to prove they infringed on a "no advertising" license in their advertising. In other words, we go after the particular (primarily monetary) facts in this re-use that DO define a difference between advertising/promotion and art, not the forms or techniques involved where there is actually much similarity to each other. Gee, seems to me it will be pretty simple for a court to determine if something is hired advertising or not in virtually all cases. So simple to establish in court, few advertisers are going to risk this as a way to get free material.

Let advertisers assume what the want to about their own profession, delusional or devious as it may be in practice, but if our licence simply says "No advertising," I think our re-use license holders will actually have little trouble showing who is doing "advertising" and who is not in court. Unlike art, there are no "pirate" advertisers doing it for the pure fun of it and leaving no trail - they are ALL legitimate companies doing business and getting paid by clients and all that is on record. If our one word ban causes all kinds of attempted sneaks around the word initially, I'm sure it will slack off with a few expensive losses to ad firms who try to undefine their function just to get access to free re-use - in itself a minor concern I'm sure, with the budgets they work with. I really think this whole idea of advertisers dying to get around simple wording will be a non-existent "problem," and as Duchamp reminds us, "There is no solution because there is no problem."

Incidentally, my intent on a "no advertising" ban is a concern almost exclusively directed at large, corporate commercial advertising. They are what I most want to prevent free source access to in their collages. If a small club puts up a poster on telephone poles with a piece of some graphic of ours on it, it's advertising but I don't care! Not at all. So I want to let this kind of "innocent" re-use stuff happen in the real world while remaining able to keep our work out of national or local product ads against our will - So with this license, every individual license holder can choose what forms of real-world advertising to prevent access to and which to ignore under a simple cover-all ban on all "advertising." Using the simple "no advertising" decree allows all us license holders to individually choose to contest absolutely anything (whatever form it takes or may become) that re-uses our work and we think is advertising, and also lets us ignore any ad re-use we happen to like or don't care about one way or the other. Yes, this WILL be selective enforcement - exactly what it should be when art and advertising collide.

If copyright prohibitions can do it, so can we.

 

DJ
 

 

> I'm suggesting that it be defined in the
> license because, if it's a matter of justifying recontextualized use
> of works, advertisers (due to their unashamed and oblivious nature)
> very well may deny that what they're doing is advertising. I mean,
> look at viral marketers, bloggers, cool hunters, etc. Actually, one of
> the basic tenets of viral marketing is "Take advantage of others'
> resources". Sure they call themselves advertisers to their
> clients, but oftentimes NOT to the people they're selling to. This
> trend will only get worse unless our hypercommercialized pop culture
> manufacturers suddenly snap back in a euphoric moment of
> self-awareness and shame, but i'm not counting on that to happen
> before the universe starts shrinking.
>
> Think of the agency that approached you a few years ago to get
> Negativland to do music for a Miller Genuine Draft ad. I can only
> guess they were going for some po-mo ironic feel of using music by a
> group that is highly critical of advertising. Seems like they'd be
> exactly the types to slide down the slippery slope of self-denial,
> using any and all materials they can for something they may publicly
> insist is their "art" when it is, in all actuality,
> advertising. I'm not saying this would be something as obvious as a TV
> ad, but you can be sure that there are all kinds of advertising
> methodologies that have yet to be discovered that will continue to
> blur the lines between commercial and personal speech.
>
> Even though most marketers and advertisers wear the title proudly on
> their sleeves, many are trying to "blend in" in all sorts of
> hip and ironic ways as target audiences increasingly become weary of
> commercialized hype. I wouldn't put it past them to deny their raison
> d'etre if they're trying to justify using material covered under this
> CC license, since much of it will probably be exactly the type of
> material that would appeal to their "demographic"!
>
> Hence, i think it's necessary to define "advertising" in the
> license. Otherwise you're leaving all kinds of loopholes for them to
> slip through...
>
> david
>
>
>
> At 11:50 AM 6/27/2003, Don Joyce wrote:
> > David,
> > Are you suggesting we define advertising within the license, or create
> > our definition for the first "infringement" case brought by
> > one of our license holders?
> > You definition is a very good start, excellent, but I would just hold
> > on to it for the first case needing it. In terms of the license, I
> > think most advertisers are pretty clearly that most of the time,
> > self-admitted, unashamed, oblivious to the dangers of their
> > profession, and probably wont consider the word, "advertising"
> > as one that doesn't apply to them. And those that will try that may be
> > contested by our license holders if they care to, armed with our
> > detailed definition of advertising for the jury's consideration.
> > Of course we'll have a legal fund and everything...
> > DJ
> >
> >
> >
> > > I think it will be difficult enough to
> > > create a definition of prohibited advertising uses without getting
> > > into the specifics of *types* of advertising. It seems like it will be
> > > more pragmatic to create a blanket restriction if we can come up with
> > > a suitable definition of advertising.
> > >
> > > The "product shot" is a great example. That IS advertising,
> > > just not a traditional 30-second spot on TV ad. We could start off
> > > with this dictionary definition:
> > >
> > > advertising: The activity of attracting public attention to a product
> > > or business, as by paid announcements in the print, broadcast, or
> > > electronic media.
> > >
> > > Seems like we'll need to expand "announcements" since a
> > > product placement is obviously a non-verbal promotion. Maybe
> > > "paid promotions" would work. But the distinctions between
> > > "paid" and not paid could be tricky as well, since
> > > advertisers are increasingly using viral marketing as ways around
> > > traditional modes of selling. The coolhunting never ends...
> > >
> > > david
> > >
> > > At 10:52 AM 6/26/2003, Glenn Otis Brown wrote:
> > > >  > This is a basic question, but
> > > > i'll ask it for clarification's sake:
> > > > >  Almost
> > > > >  all of the conversations have focused on audio, but I assume
> > > > > that these
> > > > >  licenses would apply equally to video, print, etc,
> > > > > right?
> > > > Right, we want it to be cross-media. Which is part of what makes it
> > > > hard,
> > > > but fun, too.
> > > >
> > > > The complications here arise from the fact that we're
> > > > >  allowing commercial application
> > > > > usage (ie derivative works that can be
> > > > >  sold), but not usage for advertising that implies endorsement of
> > > > > a
> > > > >  product
> > > > >  or idea. Just wondering if there's any precedent for this type
> > > > > of
> > > > >  distinction.
> > > > That's exactly the complication. I don't know the answer to your
> > > > question
> > > > off the top of my head but can look into it.
> > > >
> > > > While we're on the subject, and since you hint at it, let me ask
> > > > the
> > > > people in favor of an anti-advert clause: Would you be okay with a
> > > > nonprofit corp using your stuff in a commercial? Would you be okay
> > > > with a
> > > > university using it? What about if they were doing it for
> > > > fundraising
> > > > purposes?  How about a politician?  Would you be okay with
> > > > your song
> > > > being sampled in film score that played in a film right at the moment
> > > > the
> > > > main character made a shameless product placement plug (think Mike
> > > > Meyers
> > > > & Austin Powers)?  What if your song were used in fundraising
> > > > materials
> > > > for a nonprofit -- advertising or not?
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > > On Thu, 26 Jun 2003 10:36:50 -0400, "i.d."
> > > > <id AT blackboxstudio.com> said:
> > > > >  David McConville here with my first
> > > > > post to the list. I've been following
> > > > >  the threads, and have been most intrigued with the
> > > > > anti-advertisement
> > > > >  clause.
> > > > >
> > > > >  Is there any precedent for limiting derivative uses to works
> > > > > that are
> > > > >  *not*
> > > > >  selling product? Is there any analogy that can be used for this
> > > > > in other
> > > > >  case law? There has been a lot of controversy over the use of
> > > > > an
> > > > >  individual's image or name in commercial media, most of which
> > > > > has focused
> > > > >  on tightening control of IP (like the latest brouhaha between
> > > > > Spike Lee,
> > > > >  Spike TV, and Spike Jones' son).
> > > > >
> > > > >  Are there distinctions in these cases between using a person's
> > > > > name or
> > > > >  image for artistic or fair use applications and commercial or
> > > > > advertising
> > > > >  applications? The complications here arise from the fact that
> > > > > we're
> > > >  > allowing commercial
> > > > application usage (ie derivative works that can be
> > > > >  sold), but not usage for
> > > > > advertising that implies endorsement of a
> > > > >  product
> > > > >  or idea. Just wondering if there's any precedent for this type
> > > > > of
> > > > >  distinction.
> > > > >
> > > > >  This is a basic question, but i'll ask it for clarification's
> > > > > sake:
> > > > >  Almost
> > > > >  all of the conversations have focused on audio, but I assume
> > > > > that these
> > > > >  licenses would apply equally to video, print, etc, right?
> > > > >
> > > > >  thanks,
> > > > >  david
> > > > >
> > > > >  At 10:23 AM 6/26/2003, you wrote:
> > > > >  >I would personally feel a lot better if there was some kind
> > > > > of
> > > > >  >anti-advertising clause in there.
> > > > >  >
> > > > >  >This would differentiate between musical artists using my
> > > > > music and
> > > > >  >selling it -- which I have no problem with -- and
> > > > > advertisers taking
> > > > >  >advantage of it, which kinda makes me sick just thinking
> > > > > about it...
> > > > >  >
> > > > >  >thanks :-)
> > > > >  >
> > > > >  >lisa
> > > > >  >
> > > > >  >
> > > > >  >
> > > > >  >On Thursday, June 26, 2003, at 07:10 AM, Glenn Otis Brown
> > > > > wrote:
> > > > >  >
> > > > >  >>Hi Don,
> > > > >  >>
> > > > >  >>I was considering the inclusion of an anti-advertising
> > > > > as an issue open
> > > > >  >>for discussion still. I figured that that
> > > > > anti-advertising idea we've
> > > > >  >>been batting around on the list would do what you say
> > > > > below.
> > > > >  >>
> > > > >  >>Was just trying to settle on the stuff we can probably
> > > > > agree on
> > > > >  >>relatively easily before we finally settle how the
> > > > > advert. idea would
> > > > >  >>work. (But yes, in principle, this option could exist. 
> > > > > I still worry
> > > > >  >>about making it work, but that doesnt' mean I'm not
> > > > > willing to try.)
> > > > >  >>
> > > > >  >>Glenn
> > > > >  >>
> > > > >  >>On Thu, 26 Jun 2003 04:05:24 -0700, "Don Joyce"
> > > > > <dj AT webbnet.com> said:
> > > > >  >>>Glenn,
> > > > >  >>>Would it then be possible to have an option in the
> > > > > sampling license
> > > > >  >>>to restrict any and all uses in commercials or
> > > > > advertising
> > > > >  >>>specifically without payment/permission. This means
> > > > > transformed or
> > > > >  >>>not. This is because what some of us may want is to
> > > > > NOT appear in
> > > > >  >>>commercials at all, not on the basis of whether
> > > > > we're transformed or
> > > > >  >>>not, but on the basis of commercial intent which we
> > > > > don't wish to be
> > > > >  >>>associated with in any form. We do not claim claim
> > > > > this right of
> > > > >  >>>control over association in art if we are
> > > > > "transformed," but we sure
> > > > >  >>>should be able to with regard to commercials which
> > > > > are not art.
> > > > >  >>>DJ
> > > > >  >>>
> > > > >  >>>
> > > > >  >>>
> > > > >  >>>
> > > > >  >>>>It seems we're more or less settled on the meat
> > > > > of the sampling language,
> > > > >  >>>>but we have to figure out (1) this warranty and
> > > > > third-party rights issue;
> > > > >  >>>>(2) how this license fits in the overall CC
> > > > > model.
> > > > >  >>>>
> > > > >  >>>>Issue (1) is something our board is talking
> > > > > about right now. There's been
> > > > >  >>>>discussion about this re: all our licenses, and
> > > > > I think we'll have some
> > > > >  >>>>decision soon. So let's hold off on that for
> > > > > now.
> > > > >  >>>>
> > > > >  >>>>(2) We haven't talked much about how the license
> > > > > will fit in the overall
> > > > >  >>>>model. Here are my thoughts: first what I think
> > > > > CC policy should be, and
> > > > >  >>>>second, why.
> > > > >  >>>>
> > > > >  >>>>The sampling license should be a stand-alone
> > > > > specialty license.  A user
> > > > >  >>>>comes to CC, clicks choose license, and sees
> > > > > pretty much the same menu of
> > > > >  >>>>choices they see there today:
> > > > >  >>>><http://creativecommons.org/license/>.
> > > > >  >>>>But they also see, prominently flagged next to
> > > > > this menu, a list of our
> > > > >  >>>>"specialty licenses": sampling,
> > > > > education, developing nations, founders
> > > > >  >>>>copyright.
> > > > >  >>>>
> > > > >  >>>>Let's say the user then clicks on
> > > > > "sampling." My ideal is that this is a
> > > > >  >>>>standard license with no options:
> > > > >  >>>>Attribution is always required (BY:), and
> > > > > commercial use is permitted
> > > > >  >>>>only for transformative works (sampling,
> > > > > mash-ups, etc.); "share alike"
> > > > >  >>>>is not an option, and "no derivative works"
> > > > > is obviously not an option.
> > > > >  >>>>
> > > > >  >>>>Here's why:
> > > > >  >>>>
> > > > >  >>>>a) More options aren't necessary. Offering a
> > > > > commercial-noncommercial
> > > > >  >>>>option in the sampling license wouldn't make
> > > > > sense. Right now, if you
> > > > >  >>>>wanted to allow any commercial use of your work,
> > > > > including derivatives
> > > > >  >>>>and verbatim copies, you could simply use any of
> > > > > our current licenses
> > > > >  >>>>that 1) don't specify "noncommercial"
> > > > > and 2) allow derivative works. The
> > > > >  >>>>whole point of this license is refining that
> > > > > noncommerical provision to
> > > >  > >>>>allow
> > > > commercial transformations but not commercial verbatim copying.
> > > > >  >>>>
> > > > >  >>>>Also, 99% of our users now require Attribution,
> > > > > and Negativland has
> > > > >  >>>>seemed keen on requiring it, too. I like the
> > > > > idea.
> > > > >  >>>>
> > > > >  >>>>b) Simplicity. I like our main menu of options
> > > > > right now and want it to
> > > > >  >>>>remain pretty stable and simple. The more
> > > > > options we throw into that
> > > > >  >>>>menu, the more confusing, time-consuming, and
> > > > > complicated the licensing
> > > > >  >>>>process gets.  So let's stick with our
> > > > > "a la carte" menu, and offer a
> > > > >  >>>>separate "prix fixe" menu next to
> > > > > it.
> > > > >  >>>>
> > > > >  >>>>--Glenn
> > > > >  >>>>
> > > > >  >>>>---------------------
> > > > >  >>>>Glenn Otis Brown
> > > > >  >>>>Executive Director
> > > > >  >>>>Creative Commons
> > > > >  >>>>glenn AT creativecommons.org
> > > > >  >>>>+1.650.723.7572 (telephone)
> > > > >  >>>>+1.415.336.1433 (mobile)
> > > > >  >>>>_______________________________________________
> > > > >  >>>>cc-sampling mailing list
> > > > >  >>>>cc-sampling AT lists.ibiblio.org
> > > > >  >>>>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> > > > >  >>>
> > > > >  >>>_______________________________________________
> > > > >  >>>cc-sampling mailing list
> > > > >  >>>cc-sampling AT lists.ibiblio.org
> > > > >  >>>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> > > > >  >>---------------------
> > > > >  >>Glenn Otis Brown
> > > > >  >>Executive Director
> > > > >  >>Creative Commons
> > > > >  >>glenn AT creativecommons.org
> > > > >  >>+1.650.723.7572 (telephone)
> > > > >  >>+1.415.336.1433 (mobile)
> > > > >  >>_______________________________________________
> > > > >  >>cc-sampling mailing list
> > > > >  >>cc-sampling AT lists.ibiblio.org
> > > > >  >>http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> > > > >  >
> > > > >  >_______________________________________________
> > > > >  >cc-sampling mailing list
> > > > >  >cc-sampling AT lists.ibiblio.org
> > > > >  >http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> > > > >
> > > > >  _______________________________________________
> > > > >  cc-sampling mailing list
> > > > >  cc-sampling AT lists.ibiblio.org
> > > > >  http://lists.ibiblio.org/mailman/listinfo/cc-sampling
> > > > ---------------------
> > > > Glenn Otis Brown
> > > > Executive Director
> > > > Creative Commons
> > > > glenn AT creativecommons.org
> > > > +1.650.723.7572 (telephone)
> > > > +1.415.336.1433 (mobile)
> > > _______________________________________________
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> > > http://lists.ibiblio.org/mailman/listinfo/cc-sampling
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