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

[Don Joyce <dj AT webbnet.com>]

The Supreme Court used the term first in the 2 Live Crew case, in 
which it was seen by some justices to be a significant enough 
"transformation" to be a case of fair use rather than theft.

I trust the court's wisdom in coming up with terminology to make such 
distinctions in art works. Is something transformed or not? In 99% of 
the cases that might come before the courts, the answer will be just 
as obvious as it is out here in the world. You don't need to 
technically define "transformed" to know it when you see it (it's 
most often a drastic transformation since few artist want to be 
accused of copycatting even when their work is all appropriation - 
something 'original' is usually trying to be done in any case) and, 
exactly as fair use cases are now determined by courts on a case by 
case basis, so will any of these CC disputes about transformation. Is 
it transformed? Gimmie a jury. It's almost always easy to judge this 
factor, and also very important not to restrict such judgements to 
any particular definition of "transform." Why? Because it's ART we're 
talikng about, and no one can predict what transformation might 
consist of in future art, but I bet they will be just as obvious as 
transformations of an "original" as they are now.

I equate the Cut & Paste license with an expansion, by owner, of the 
scope of fair use for their work. What determines fair use as a legal 
position will similarly apply to Cut & Paste re-uses (like 
determining "transformation" for instance, that's what a court that 
gets involved will be doing under this license.) Fair Use has always 
been subject, as it must be, to subjective determinations because 
there's no established guidelines (thank God) as to what art might be 
or what form it may take.
Now we're in an age of reproduction. Now we need a Cut & Paste 
license to allow for free transformations of existing material.
DJ



> On Tuesday 16 September 2003 04:03, Lisa Rein wrote:
> >  I think the point is to *require* transformations. Not to make them an
> >  option.
> >
> >  So as not to allow people to re-release songs without really
> >  contributing anything to them in the resulting derivative work.
>
> But who's gonna decide what a transformation is?
> And is the transformation required for any redistribution?
>
> In my opinion this transformation requirement doesn't make sense at all.
>
> bye,
> Kasper
>
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