I had a chance to ask him the question directly in the Globe’s Download Decade Live Chat this Tuesday. I didn’t realize it was happening until the last minute and was rushing out the door, so my question was worded a bit awkwardly:

4:32 [Comment From Blaise Alleyne]
Greg, huge fan of your work, came to see you in Toronto in the fall. One question that’s bothered me though — why CC BY-NC-SA? [edit: it's actually CC BY-NC] In other words, why forbid commercial use? I know you argue that fair use still allows commercial use (basis of your work), but I’m sure you’re well aware of all the legal ambiguity there. And, you’ve said that you don’t want your songs appearing as an endorsement in a commercial, but that sort of thing could happen anyways through collective licensing agreements. Also, the Share-Alike provision protects from exploitation much more than the Non-Commercial provision (i.e. if a company wants to use your song in a commercial, they’d have to release *their commercial* under the same license!)So… why not adopt a free culture approach entirely a

4:32 [Comment From Blaise Alleyne]
(opps, didn’t finish that comment…) So, why not fully adopt a free culture approach and allow commercial use of your music?

And his response:

4:35 GreggGillis: Basically, by going with CC BY-NC-SA, that means that someone can’t just take any one of my songs/albums/etc and just put it on a commercial or sell or a product with it without asking. But, people are protected under Fair Use, the same way I am protected under Fair Use. So I’m completely open to people remixing / recontextualizing my work and selling it if they believe it is transformative and does not negatively impact me.

I was disappointed at first because I thought this was his whole response; he was just restating the arguments I anticipated.

I’d heard him use the “put it in a commercial” response back in November at the Kool Haus, when he was trying to respond to the slightly outrageous “Is Girl Talk Killing Music?” piece by Marc Weisblott in Eye Weekly. Except, this was at the end of the show and he was shouting and everyone was drunk, dancing and excited, so he kept it brief. I wasn’t sure whether to attribute the ambiguity to the setting or to his understanding then. I think it’s clear he realizes that commercial use is about more than just commercials, but that just strikes me as a really bad way to talk about commercial use. Using “commercials” to explain commercial use is guaranteed to make a confusing topic even more confusing.

4:36 GreggGillis: In all honestly, I was open to going “completely free” with it. The label, who releases my music, Illegal Art, suggested going with the CC BY-NC-SA and I thought it was a good idea.

4:39 GreggGillis: If you are familiar with my work enough to sample it and make something new out of it, then I’m guessing you would most likely know that I would have no problem with people re-working my material in the same way I re-work other peoples’ material. The CC BY-NC-SA just seemed like a safe move. I’m approached by people asking to license songs pretty often. I didn’t want to make it a free for all.

It’s interesting that it was the label’s suggestion. I suspected that the NC choice had to do with retaining potential royalty streams, and he does mention licensing. Is NC the “safe move?” Sure. But I think the unintended restrictions and the ambiguity of the license make something like CC BY-SA a better choice in the long run.

The argument that people would need his permission for potentially objectionable uses doesn’t really make sense when you consider the ways in which that could happen anyways though collective licensing agreements. A company could easily use a Girl Talk track to sell a product, if all they needed were performance rights (so, maybe not in a commercial, but at an event).

But I do not believe he’s being hypocritical. I had read the Eye Weekly article in print, and was quite annoyed when they said the NC license “prohibits anyone from pulling a Girl Talk on Gillis,” but I just noticed that the web article links those words to my Techdirt post! Argh… Gillis would never take legal action against someone else for remixing, and it’s not actually hypocrisy when you consider fair use — just a bit odd and disappointing. I think Gillis and other artists would be better off removing the barriers to commercial use, but I don’t think he’s a hypocrite.

To be even more clear… I think Girl Talk is making great music, doing great work promoting the art of sampling, helping to legitimize remix as art in the minds of many and challenging restrictive copyright provisions which make this sort of art form impossible if each sample has to be negotiated individually, not to mention the business model experimentation with his last album. I’m just picking on him for the non-commercial restriction and making an observation that even an artist like Girl Talk seems to have some attachment to a permission culture. I think we can do better.

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.

[This was largely inspired by a couple Rob Myers posts — Noncommercial ShareAlike Is Not Copyleft and Why The NC Permission Culture Simply Doesn't Work — which convinced me to license my music under a free license.]

[Read the comments on Techdirt.]