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

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  • From: Joshua Csehak <jcsehak AT rootrecords.org>
  • To: cc-sampling AT lists.ibiblio.org
  • Subject: [cc-sampling] On Advertising
  • Date: Tue, 22 Jul 2003 23:54:21 -0400

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.

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>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

----------------------------
Root# Records
Open Source Music
www.rootrecords.org



  • [cc-sampling] On Advertising, Joshua Csehak, 07/22/2003

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