Software Industry Assocation About To Learn What Safe Harbors Mean

Why Doesn't Girl Talk Allow Commercial Use?

from the go-big-or-go-home dept

Fri, Jul 25th 2008 3:11pm — Blaise Alleyne

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

29 Comments

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Brett, 25 Jul 2008 @ 4:07pm

It's got nothing to do trasformative / derivative and his definition therein - I bet he just doesn't want one of his songs appearing in a Honda commercial.
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chris (profile), 25 Jul 2008 @ 4:43pm

pride
lots of folks want to keep tight control over their stuff simply because of pride. they have trouble seeing the value of getting their work out to as many people as possible. they don't want their music used in crappy low budget movies or to appear in commercials.
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PaulT (profile), 25 Jul 2008 @ 4:54pm

Re:
Yeah, I reckon he's not got a problem with someone else sampling the tunes, or playing in a YouTube video, but he doesn't want to turn on the TV to find that it's being used to promote the next Paris Hilton movie or to sell tampons.
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zcat, 25 Jul 2008 @ 7:08pm

no problem....
The rights granted by a 'creative commons' license are additional to any rights already granted by copyright law. 'fair use' is still allowed, just as much as it would be for an 'all rights reserved' copyrighted work.
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So what?, 25 Jul 2008 @ 7:14pm

So what if it's used in a commercial or in a shitty movie trailer? This is the kind of shit that has to stop if you expect to get anyone believe your "new business model" claims aren't just another way of saying "I want free shit." It can't work both ways, with consumers following one set of rules and businesses following another. That's exactly the system we all hate and is so fucked up right now - businesses want to operate by their own rules and fuck the consumers over. Simply flipping the sides is not going to make anything better.
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Jake, 25 Jul 2008 @ 9:01pm

Re:
Which is not, in my opinion, asking an awful lot. All he's really doing is creating an extra incentive for people to come up with something new and innovative instead of making a profit off someone else's work. Isn't that what copyright is supposed to be useful for in the first place?
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PaulT (profile), 26 Jul 2008 @ 1:11am

Re:
He's basically saying "other musicians and creative people can use the music as much as they want to create new art, but don't use it as free advertising for your unrelated product". As long as the final product actually benefits society, rather than selling shit for shareholders, it's OK. Why do you have a problem with this?

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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Jesse, 26 Jul 2008 @ 5:58am

It would be interesting if there was a license that declared anyone using an author's work waived the right to make copyright claims against the author. Thus, by using someone else's work, you are agreeing that sharing with this individual is worthwhile and you also share your work with the author.
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Blaise Alleyne (profile), 26 Jul 2008 @ 10:15am

Re:
True, I think it's a reasonable concern, but there are other considerations to balance out too. If you require Honda to ask permission, you also require every Joe Smith with a blog that has ads to ask permission. There's no way to distinguish between a large corporation and another musician.

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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Blaise Alleyne (profile), 26 Jul 2008 @ 10:17am

Re: no problem....
Yes, but some uses which could be beneficial are not permitted (e.g. a blog with ads couldn't include a song in a post). Plus, you often need deep pockets just to defend your fair use. In theory, it's allowed, but in practice, it's not always so easy.
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Blaise Alleyne (profile), 26 Jul 2008 @ 10:25am

Re: Re:
He's basically saying "other musicians and creative people can use the music as much as they want to create new art, but don't use it as free advertising for your unrelated product".

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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Blaise Alleyne (profile), 26 Jul 2008 @ 10:32am

Re:
Hmm... I'm not aware of a license that does that specifically (waive the right to make copyright claims), but copyleft licenses like CC BY-SA or the GNU GPL do something similar, if I understand your main idea correctly.

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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PaulT (profile), 26 Jul 2008 @ 11:16am

Re: Re:
Well, the way I see it is that if Joe Blow uses a tune on a podcast, samples it to make a new tune or uses it in the background of a low-budget movie, then it's promoting the creation of art. That benefits no just the creator, but society as a whole, especially if that work inspires others to create further works. I'm going to guess that even if one of these technically violates the CC licence, Girl Talk's unlikely to try going after them in court. if anyone knows the advantages of using another person's work in your own art, it's him.

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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PaulT (profile), 26 Jul 2008 @ 11:21am

Re: Re: Re:
Yes but as I understand it, unlike trademark law, there's no need to go after those who violate the CC licence. He doesn't lose the copyright if he chooses not to enforce it. So, he'd probably not choose to go after the blogger who includes the song with a banner ad, or the guy who includes it in a homebrew game. But, he has ammunition if a company whose practices he objects to chooses to use it in their ads.

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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Anonymous Coward, 26 Jul 2008 @ 4:49pm

Re: Re: Re: Re:
By the same token, isn't he opening himself up to the same type of scrutiny? What if an artist who is sampled on Girl Talk's album objects to the practice of compiling mashup songs out of samples. Not because of copyright or anything, let's just say this artist thinks it's totally lame and uncreative and not good art, and he doesn't want his song to be in Girl Talk's album because he doesn't want to be associated with a mashup song. Now does he get to tell Girl Talk not to use his work?
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PaulT (profile), 26 Jul 2008 @ 5:26pm

Re: Re: Re: Re: Re:
No. If the original licence chosen was the standard copyright licence, then short samples are allowed.

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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Brando, 26 Jul 2008 @ 11:08pm

Re: Re:
True Blaise... what's the harm in Honda using it in a commercial.

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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Blaise Alleyne (profile), 27 Jul 2008 @ 10:41am

Re: Re: Re: Re: Re: Re:
All true, except some of the clips Girl Talk uses are definitely in the 30-60 seconds category, but let's say it's fair use for the sake of argument.

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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Blaise Alleyne (profile), 27 Jul 2008 @ 10:45am

Re: Re: Re:
As long as the politician does so under fair use, Gillis has no claim anyways. Plus, what if the politician made use of it in a noncommercial context?

Preventing unwanted association is not the purpose of the noncommercial clause.
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Blaise Alleyne (profile), 27 Jul 2008 @ 10:52am

Re: Re: Re:
First, let me say I'm largely in agreement with you. I doubt Gillis would sue someone for putting his music on a blog, and this is a huge step in the right direction. I know I'm being kind of picky here. I'm just curious why he, of all artists, would hesitate going all the way.

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:

You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.

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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ConceptJunkie (profile), 28 Jul 2008 @ 7:03am

Re:
You seem to have it backwards. If you uses my work, why would you have a copyright claim against me (and need to waive it)? It seems to me I'm the one with the claim.

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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Blaise Alleyne (profile), 28 Jul 2008 @ 9:50am

Re: Re:
You seem to have it backwards. If you uses my work, why would you have a copyright claim against me (and need to waive it)? It seems to me I'm the one with the claim.

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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rogerroger, 10 Nov 2008 @ 11:58am

Re: Re:
so maybe any of the artists he sampled don't find any value in being sampled by him- regardless of financial gain or loss- maybe they just don't want to be used- why should he get to dictate if they can;t?
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rogerroger, 10 Nov 2008 @ 11:59am

Re:
amen.
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rogerroger, 10 Nov 2008 @ 12:02pm

Re: Re:
sorry that was to the first response-

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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Anonymous Coward, 13 Nov 2008 @ 12:17pm

They're not HIS songs!
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adam, 10 Dec 2008 @ 10:02am

GT
I think the reason it's under noncommercial CC is if he advertises it as commercial, it'll just draw lawsuits. Non-commercial remix projects are legal.
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Blaise Alleyne (profile), 22 Dec 2008 @ 4:57am

Re: GT
Good point, though I don't think it's right. He's released it under CC -NC license so that other people can only remix non-commercially, but he is making plenty of cash. He's doing the whole pay-what-you-want thing to sell his remixes through his website. He's just restricting other people's usage to the noncommercial realm (fair use aside), but he's more than happy to make commercial use himself, so I doubt it has that much of an effect on deterring lawsuits.
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Kester Taylor, 21 Aug 2009 @ 11:10pm

I don't think he's going the noncommercial route on principle at all. I think he's doing it as a "one step at a time" kind of approach for the sake of the copyleft. Right now, Girl Talk is making money off remixing other peoples' works strictly for his own works. But when he permits these derived/transformative/whatever you want to call them works--which have not legally been backed up, he merely hasn't been hounded by anyone yet--to be used commercially, he's making money off OTHER people using them. More importantly, it's become at HIS discretion who uses others' sampled works. My wording is convoluted here, so for the sake of simplicity, I'll use an example.

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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