Why Doesn't Girl Talk Allow Commercial Use?
from the go-big-or-go-home dept
Legal trouble for Girl Talk -- an artist named Greg Gillis who released a "mash up" album using the pay what you want model -- is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.
Aside from potential legal claims over the license if the fair use defense fails, why would Gillis -- an artist making commercial use of samples from others -- put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that "the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes," but is the noncommercial restriction for other uses really necessary?
First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks "if someone else is able to do something commercially useful with my content, why should that be a problem?" Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.
Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting "upstream" would help an artist like Gillis maintain a better relationship with the artists from which he's sampling.
Furthermore, what about people who might do something with the album that's potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk's music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.
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Filed Under: commercial use, copyright, creative commons, girl talk, greg gillis
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Playing devil's advocate a bit... what's the harm of the song appearing in a Honda commercial? Sure, that could be a source of income, but it's also got promotional value (especially with the Attribution clause of Creative Commons licenses). Maybe being available royalty-free for corporations like Honda to use would actually increase the likelihood that it'd be used, thus reaching a wider audience.
There may be some lost opportunities by waiving royalties and requiring permission for commercial use, but there are some benefits that need to be weighed out as well.
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On the other hand, if you use the music to promote a Honda, it's just helping a corporation's bottom line. Yeah, it also help the people who work for the company, etc., but all you're doing is helping to save the $50,000 or so that Honda would have needed to pay for a non-CC song. Hardly the same ballpark. There's the possibility that Girl Talk's music could also be promoted in this way, but let's say that GT has a specific moral objection to the way Honda conducts its business. Regardless of tertiary economic benefits, he'd want to be allowed to block that usage.
Overall, I think this is a non-issue. As noted elsewhere here, the CC licence allows more freedom to use the music that the tracks he originally sampled, he just stops short of allowing any usage for any reason. I don't see why that's an issue - the music industry would truly be a better place if this licence was the standard for everyone!
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In the comments below, I've already highlighted the fact that association with a corporation or another product can't be prevented if it's fair use, and that preventing that sort of association isn't the purpose of copyright.
But, further, Creative Commons licenses (at least both BY-SA and BY-NC-SA) contain a clause in the attribution part that would give the licensor some power here. It says:
The source must be attributed, but not in a way that implies an endorsement. Therefore, noncommercial or not, if Honda was to be found implying an endorsement or something, that would still be in violation of the license.
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So instead of Honda... insert the politician who directly opposes your views.
Perhaps that one remaining Dixiecrat decides to run for office.
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Preventing unwanted association is not the purpose of the noncommercial clause.
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pride
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no problem....
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That's pretty different to the typical copyright attitude of "sampled 2 seconds or caught 5 seconds of our song in the background of a YouTube home video? See you in court!".
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I think that's what he's trying to say, yes, but that's not what the license actually says.
If a musician wants to use the music to create new art, they would need to claim it's fair use if they wanted to actually profit from it. Otherwise, derivative works of art are subject to the noncommercial clause, putting up a barrier for those trying to make a living from that art.
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Yes, it's all interpretation, but at the end of the day this still allows greater usage rights than the standard copyright licence.
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Also, the samples used by Girl Talk are very short, rarely more than a second or two. The use of such samples is very different to using 30 seconds to a minute for a commercial ( or the whole song as often used in mashups).
Remember, standard copyright still applies here. If an artist wants to use a 5 second clip of Girl Talk's music, they're entitled to under standard copyright and there's nothing he can do about it. However, if they want to use a significant proportion, they're bound by the CC licence. This still allows more than standard copyright - the standard licence would not allow a significant use for any purpose without pre-approval, the CC licence allows any use as long as it's non-commercial.
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You can clearly identify the songs that he's using, and he's doing so without the artists permission. What if he mixes a Christian rock songs with some rather vulgar or offensive lyrics? There's a scenario where the Christian artist would likely be offended and not want their music associated in that way.
Yet, if it's fair use, that artist would have no claim. [1]
The purpose of copyright is not to control what your work is associated with. (What about when it enters the public domain?) The purpose of copyright is to provide an incentive to artists to create by granting them an artificial monopoly for a limited time.
So, though it may be a concern for an artist, this is beyond the scope of copyright and the CC license won't stop any fair use association anyways.
[1] Moral rights aside -- I don't think the U.S. has moral rights, and they're largely waived in Creative Commons licenses anyways.
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PaulT- the whole 2-5 seconds of music is basically the tip of the melting iceberg that is music copyright law.
why can't this apply to any other form of art? film? books?
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These licenses allow for derivative works and commercial use, so long as that same freedom is preserved (e.g. works are released under the same license). So, in effect, "by using someone else's work... you also share your work with the author" because any works based on the original must be released under the same terms and are therefore available for the original author to make use of as well. If that makes sense...
I think that's the sort of thing you're suggesting?
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It sounds to me that he's making commercial use of other people's work, he _is_ charging for it, but wants to deny the same for people using his works. He seems to want it both ways.
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I think Jesse's talking about a more complicated scenario where Person B creates a derivative work based on Person A's work, and then Person A wants to go and use Person B's derivative in some way. That's the "upstream" issue.
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GT
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If I'm M.I.A., and I see that Girl Talk is sampling my work in his song, I might either conclude that I like it or that I don't like it, but that he's using my art to create more art, and to make money. He's already on moderately thin ice with me, since he didn't ask me if he could use this work. However, when he decides that he owns rights to it BEYOND that, to where he can tell someone else they can use work which has sampled MY music, I'm going to be a lot more angry about it. Because it takes where my music gets placed even further out of my hands.
I don't think Girl Talk is refraining from this because he thinks it's wrong; I think he's refraining from it as a matter of practicality, because he fears its destructive potential toward his artform, which is a lot more important to him, I think, than his ability to license his work.
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