Why Girl Talk Doesn’t Allow Commercial Use

Last July, I asked, why doesn’t Girl Talk allow commercial use? Girl Talk (Greg Gillis) makes commercial use of samples from all sorts of artists for his own music, yet he uses a Noncommercial Creative Commons license himself. Though, he points out that anyone else could use his material commercially, if it were fair use. That’s how he defends his own commercial use of samples from other artists. Still, it seems a bit ironic.

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.

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