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

[Joshua Csehak <jcsehak AT rootrecords.org>]

Leela: "Didn't you have ads in the 20th century?"
Fry: "Well sure, but not in our dreams!  Only on tv and radio...and in 
magazines...and movies.  And at ball games, on buses, and milk cartons, 
and t-shirts, and bananas, and written on the sky.  But not in dreams!  
No sirree."
 — Futurama

---

oh man oh man oh man.

I just saw an ad for Shout Action Scrub (or something like that). They 
used clips from Angels with Dirty Faces. I'm not exactly sure it was 
AwDF, because I've never seen it (they never seem to have it at the 
video store), but if it was, now it's ruined for me. Well, not ruined, 
more like, soiled.

"What should we do with him?"
"Rub 'em out"
[ housewife sprays stain on shirt ]
"Take that, you greasy fiend"

man oh man.

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Suggested reading:
http://www.opensource.org/docs/definition.php

The guys in the Open Source Software industry have been dealing with 
this sort of thing for a while, and I think they provide a great 
example to follow. I'm sure you guys are all aware of this, but I 
thought I'd mention it nevertheless.

---

>It well may be that the distinction between ads and art is
>    obvious to everyone, but denying rights to some on the basis
>    that one finds their activities reprehensible is not what
>    licensing contracts are for.

Couldn't agree more. No matter how fancy your prose is, "commercials 
contribute to the moral decay of society" boils down to "ads suck." 
While this may be true, it's not gonna cut it as a reason to not allow 
advertising.

The Open Source Definition specifically mentions a non-discrimination 
policy. For instance, Stallman, Bill Gates, and Osama bin Laden could 
all use open source code, as long as they abided by the license.

So shouldn't the non-discrimination policy extend to advertisers?

No. I can think of three good reasons why not (well, two good reasons 
and one convincing one):

1) Reputation. An artist's image, like it or not, is part of his Art. 
If your Art is used in advertising, you're perceived as a sell-out. The 
only thing that can mitigate this is piles and piles of money.

2) Integrity of the work. To this day, I can't hear Gershwin's 
"Rhapsody in Blue" without thinking of American Airlines. And now when 
I hear "Blitzkrieg Bop," I think of that stupid cellphone commercial. 
To a lesser extent, having your song in a movie can be seen to tarnish 
it also. Again, the only possible reparation for this is scads of 
green, preferably in bags with a big "$" on the side.

3) Potential Revenue. For many musicians, licensing their work to 
commercials and/or films pays the bills, and can make a difference 
between quitting their day job or keeping at the grind. I think it's 
perfectly valid for a musician to want to make derivative musical works 
allowed, but not allow use in films or TV shows (I'm using music 
examples here, because that's where I'm coming from, but it should also 
work for all media).

I fiercely believe that morally, every artist should always have 
complete control over preventing these sort of uses of his work, and be 
the only person to make that decision. I mulled this over for quite a 
while - this decision didn't come easily. But I think that software is 
fundamentally different from other types of other types of Art, and 
this is needed. But I'm open to the idea that non-discrimination should 
extend to all forms of Art, including blockbuster films. What do you 
guys think?

So how can we define advertising? Well, earlier someone mentioned the 
dictionary definition. Why not just use that?

>advertising: The activity of attracting public attention to a product 
or
>business, as by paid announcements in the print, broadcast, or 
electronic
>media.

Works for me. Anything that falls under this definition — not allowed. 
Might want to add the phrase "product or service." The fact that ads 
are made for hire is irrelevant. The Devil is in the intent.

re: the viral factory
>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...

Hey, those are some great commercials. If only all commercials were 
like that, I'd get a TiVo and have it skip the shows. But they're still 
ads, and not allowed.

more questions:
>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?

Nope. Ads, and not allowed.

>How about a politician?

In a commercial, no. But here's an interesting question: does 
propoganda qualify as advertising? I'm thinking, yeah, and it probably 
should be regulated as such.

>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)?

I think the Austin Powers thing would qualify as a parody, and probably 
be exempt. But let's say there was a scene in Charlie's Angel where 
they were doing kung-fu and drinking Mountain Dew, to the tune of my... 
tune, I'd have a problem with that. I don't think it'd hold up in court 
though — it might be hard to prove it was an advertisement.

>What if your song were used in fundraising materials
>for a nonprofit -- advertising or not?

I think if it's playing in the background while they're doing their 
pledge thing, it qualifies as broadcast. But if it's part of a 
fundraising DVD or something, then it qualifies as advertising. If the 
Sierra Club did a special about the Alaska pipeline to get anti-oil 
fundraising, it's advertising. But if they made it to educate the 
people, then it's not. The trick is to figure out the intent, and it's 
probably best (or at least simplest) to leave it up to the courts.

>I know a few people (and can imagine others) who may well want to
>    produce collage art, which they intend to give away for free in
>    order to promote themselves or their firm/non-profit/studio/cause,
>    and who might read the anti-advert clause as preventing them from
>    doing so.  Do we mean to exclude all acts of promotion of any
>    kind, or only those perpetrated by (large?) for-profit
>    corporations?  Put differently, can we articulate clearly which
>    *activities* we would prevent rather than which *motives* we think
>    are compromised?

If the original intent is to advertise, then it's not allowed. If the 
original intent is to make a work of Art, and they decide to give it 
away to promote themselves, nothing wrong with that. What it comes down 
to is, is the piece an advertisement or a free work? I think generally 
the work would speak for itself, and we could let the courts decide any 
close calls.

>Don- he mighjt be right....if share alike is part of this,, no
>advertiser would use our stuff  as they would never want their ads
>used in someone elses collage....right? (?)

Actually, I'd think that just the opposite would be the case. Unless 
the Share-alike bit made the advertisers give up certain trademark 
rights or something.

>However, Glenn's questions do need to be addressed. Like when 
Negativland
>was sampled for the MTV Music Awards - is that advertising? Can their 
work
>be used in a live event ceremony but not in an ad promoting the live
>ceremony? And here's a can of worms for you: Are the MTV Music Awards 
artistic?

No, but they're not an advertisement either. If you let people use your 
work in film, you also need to let them use it in stupid things, like 
the MTV music awards. Non-discrimination. And of course, like the 
current draft says, ads for the derivative work are allowed.

Here's an interesting situation: That country song, "Gonna buy me a 
Mercury." Does that count as an ad? I say no, since it AFAIK wasn't 
conceived in a commercial sense. There's nothing wrong with singing 
about what you like. But the Mercury commercial that includes the song 
definitely counts as an ad.

In the music world, there are synchronization rights, which (I believe) 
you have to obtain if you want to use a song in a film or commercial. 
Does anyone know the exact legal usage? It might be useful to follow an 
existing standard. Like, if "synchronization rights" are well-defined 
and suit our purpose, we could simply say something like "the author 
retains the sync. rights."

Which brings me to my last question: do we want to include in the 
license the option to allow/disallow ads, and the option to 
allow/disallow use with other media; group them both together and 
disallow both; or disallow ads and allow use in films? I lean towards 
not any use in films—I think we'll get a lot more musicians adopting 
the license if they can retain the film rights. The share-alike option 
might make this moot, since any filmmaker that can afford to license 
your work would not want to make his film available for free 
distribution, but it's good to come to a consensus anyway.

> Good to hear from Joshua that the no-ad aspect mkaes  this more 
appealing!

If we can get it so the SL has NoAds and an open-source option, I'm so 
switching all my music over to it!

Josh

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Root# Records
Open Source Music
www.rootrecords.org