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[cc-sampling] Re:advertising wording

From: Don Joyce <dj AT webbnet.com>
To: creative commons license list <cc-sampling AT lists.ibiblio.org>
Subject: [cc-sampling] Re:advertising wording
Date: Sat, 28 Jun 2003 13:39:11 -0700

Title: Re:advertising wording

Sorry for the length of this. Just ignore this, Glenn, as you clean up other aspects, this is all proceeding to get the advertising wording together so it will be ready whenever you are.

David,

Ok, perhaps I'm suggesting a compromise with the intentional and unintentional mud of life as we know it. I say let those few trying to slip through such loopholes in simple license wording do it - the license means we have a legal recourse when offended - something collagists have never had before in copyright law. So the license's intention is weighted more to legal recourse rather than offense prevention. It seems more humane, given the positive value of some of these "offenses."

As I noted in my last post, there are actually forms of re-uses in advertising I would not object to, do not intend to prevent, and would never want to contest. But I can't predict what they might be. I actually want a license that DOES tend to let whatever happens, happen. I just want a way to stop specifically harmful re-uses in advertising as guided by my own personal taste in such indefinable things. Yes, after the damage is done, but perhaps even requiring a retraction via an advertisement, distributed to an equal degree and in the same locals as the offending re-use ad appeared. No fine, just a retraction ad with our wording. Isn't this the ideal kind of law in a democracy where anything can supposedly happen and everyone gets the chance to make horrible self-determined mistakes such as subverting the integrity of someone else's art for others' commercial profit? But there's a price to pay for pursuing such misguided freedoms, too. I think that's perfect, considering we're not talking about rape or murder here, but hopefully an environment in which a wide range of new ideas and experimentation are encouraged, some bad and some good being inevitable in any wide range. Less "prevention" and so necessarily more toleration too. Lotsa luck on getting anyone to agree with this in an otherwise age in which income equals ego and terrorism is just around the corner.

The commercial as short film does not involve appropriation does it? If it ever does, we would have to go after them (if we wanted to go after them) as being a commercial and show that that one brand word at the end makes it an advertisement (and are they ever going to remove that, their only link to profiting off this very expensive production?).

Remember the Lexus TV commercial that never actually showed the car, just dreamy landscape speeding by for 30 seconds? The name of the unseen car was still there at the end for a second. The Lexus was a brand new car name to America at the time - ingenious introductory campaign, yes, advertising is occasionally ingenious!

But your point about monetary trails I agree with. This is a major basis for distinguishing advertising from art, but not always either. A patron may pay an artist to create something for them and that something may involve our re-use license. (But would we object?) Yet this, and every other example of "paid" art (as opposed to paid advertising) that I can think of could also pretty easily convince a court that it was art patronage - either no content strings attached, or even, "it has to be a collaged portrait of my wife, and be sure to stick some Negativland cover graphics in there," and not advertising - "you still gotta put our name at the end, just for half a second" type of ad operation. Even the law cannot be blind to an obvious difference even if the difference can't be technically defined as a "difference." The portrait is not selling anything but the portrait of the patron's wife, the film is selling something more than itself. It's different and everyone knows it, and that's what life is like. Good God, can you imagine a life actually defined by law? I do have faith in common human sensibilities, even as muted and intimidated as they always seem to become in a courtroom. It's not always so smart to try to be thoroughly "objective" about human events in court. That's certainly not the life we're living out here... we're using vague intuition and emotional responses all over the place to get through this. Therein many human values do reside.

But again, I'm thinking legal recourse to events, not the legal control of events, because again, we can't predict how much of future appropriation practices in advertising we may, as individuals, approve of and how much we wont. But I think it will always be a combination of both at work out there.

This license is all about giving ourselves recourse to personally unwanted re-use in advertising only. What is advertising? The only unchanging thing in the unpredictable evolution of advertising is the always present aspect of money being paid to make it with client-control strings attached. There may be plenty of other kinds of "art" that come into existence on this basis (TV sitcoms, publishers with thematic missions, etc.) but the extension point to include is that the offending work is an ad because it appears in a paid advertising slot/space in any medium. Practically nobody is making art and buying commercial time or space to display it (a good idea, by the way) and nobody is filling their "entertainment" time or space with paid advertising, so this aspect of where it appears, in what form and for what purpose the appearance time/space was acquired is pretty reliably separate between art and advertising.

But on the other hand, a new form of advertising to already escape the "ad space" part of my definition is totally unannounced, subliminal, or background product placement in the middle of films or TV. This will increase. Nevertheless, this is always paid for, the bill stating it is for "product placement" which is certainly advertising. But when you think about it, how could our license ever come into play within product placement? That will never have anything to do with collaging source material or appropriation as far as I can see. I actually can't think of any possible use of collage in any of the emerging subliminal forms of placement. It always has to be about a singular, immediately recognizable product, brand, or title, attempting to catch a random brainwave of yours strictly in terms of random detail recognition. Collaging your product with other sources as a placement behind The Hulk is probably just going to confuse the recognition factor. That's what I would tell them anyway.

But in general, these two aspects - the monetary trail initiating the offending re-use, along with its positioning aspect as advertising, should be the basis of a "definition" of advertising, if we need a definition within the license wording - It's cumbersome, endlessly questionable, and I'm not sure we do need to define it to make it just as effective in practice, when considered as a form of recourse rather than prior control. I do think such a definition will make perfect sense to any court when confronted with this license's proposed distinction. I could be wrong, I haven't been in court lately. So I also wouldn't be surprised if the court declares our license invalid as a case of "people-made law" that doesn't appear on any of their books, and washes their hands of the whole idea of distinguishing between art and advertising for the first time, preferring to get more golf in this week.

Yes, the NPR wording is interesting, thanks. (their use of, "inappropriate commercial uses"

- terribly vague itself - shows they too think there may be commercial re-uses that are "appropriate." I do too. I think they're also concerned with letting good things like being publicized happen, ignoring petty infractions, etc., but retaining the ability to stop other "endorsement" related re-uses which may be in a similar commercial category to things they'll gladly allow. If we do define, we should be just as vague, and then I gotta wonder why get into it at all because it can't be specific at all, and thus serves only poorly as a preventative "understanding."

"Perhaps it becomes misleading to define advertising at all" (!)

Only one juror seems to perk up from their drowsiness at this statement as the defense rises to object in frustration.

That last statement above, spoken under oath, is why art always loses to objectified commercial concerns in American courtrooms. Witness dismissed.

PS Motivation has a long tradition in determining guilt in law, and it seems to me this could usefully be part of a legal advertising distinction too - what was the motivation for creating this work? Was it made to display something commercial outside or beyond itself which coincidently paid for it to be made?

Don,

I thought it might be wise to include a couple of examples of the slippery slope I'm talking about:

http://www.theviralfactory.com/gallery.htm

Their video clips could easily be short films, but they're actually commercials paid for by large ad agencies. They *could* argue it's their art, so our definition should include something about payment for services. In some of these the only indication that it's an ad is one word at the end. Take that word away and you're not selling anything. Very trick territory...

Also check out: http://www.pyrads.com - this company specializes in paying bloggers to post opinions. Not hard to see why making the distinction of getting paid is important.

When searching for blogging references, I found the following language in the NPR license (http://www.wired.com/news/politics/0,1283,53543,00.html)stating that links to NPR's site "should not (a) suggest that NPR promotes or endorses any third party's causes, ideas, websites, products or services, or (b) use NPR content for inappropriate commercial purposes." I never thought I'd be suggesting usage of legal wording from NPR, but maybe we should consider something similar?

david

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

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---------------------
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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Re: [cc-sampling] where Sampling will fit in the overall licesning model , (continued)