It’s a business model issue. Despite the fact that I think we should have a free (libre) culture rather than a permission culture, this sort of thing will continue to happen whether you agree or not. If you have a business model in place poised to take advantage of it, what’s the problem?

There are still artists who make art for art’s sake. Bless your hard-working heart, David, you’re one of them.

In today’s society, there are more artists who like the world that comes with successful art—fame, notoriety, contracts, deals, money, cars, luxury. The life of excess. These so-called artists are the ones that I see raising the most hell over ads, mashups, youtube videos and the like. They claim, “it’s not mine, I didn’t make it, you’re ripping me off—“ which to me screams “I’m not being paid for you commoners to abuse my work.” It’s not the protection of intellectual property, it’s anger and greed for not earning any profit.

Isn’t one of the greatest joys that come from being an artist a point in time when everyone wants to show off your work? So the famous quote goes—“Imitation is the sincerest form of flattery.” There are artists like David who feel so pleased that they inspired somebody so much that the audience wants to share that inspiration with others. No money is exchanging hands. Just ideas. Just hope. Just the love of a common artistic endeavor.

Easier and instantaneous access to others art provides more opportunities for abuse, misrepresentation, misinterpretation and greed on all sides. The old “15 minutes of fame” adage. It also provides a more in-your-face medium for the complainers and spoil-sports who don’t get their way, or more to the point, their money.

Technology is changing. Ideas are changing. The access to art is changing. Maybe the view of successful artists should change to and embrace what some of today’s artists have already done—create and spread art for art’s sake.

The established artist has a large fanbase, the new artist has, presumably, none or very few fans. Whether fans act of their own volition or the artist initiates his marketing to get the ball rolling, the mechanism and result are the same. It’s an easy cop out to say “my fans did it for me, I didn’t ask them to, so I’m in the clear”. Both types of techniques (ads using a bigger artist’s name) and mashups, covers, blogs, etc. are equally creative and fair since they level the playing field.

I think (and this should not be used as a legal opinion) that from the perspective of the law (in Canada), there need not be a motive to infringe a copyright or a trademark. Furthermore, one does not need to be aware of infringement to be guilty of it.

So the law should apply in the same way for mashups, covers or ads … And justifying the use of a trademark (including brands) or of copyrighted material with a “creative purpose” seems a weak argument against infringement.

I think that a permission from the artist(s) or the copyright / trademark owner(s) should always be requested before using copyrighted material, trademarks or brands (except maybe for personal use).

Now, fortunately the owners of copyrights / trademarks do not often choose to enforce their rights. In some cases, it may be because people like what has been done with their material. In other cases it may be because enforcement is not good for the business or because it is very expensive and few people or corporations can afford it.

Having that said, if it would be me, I would be very uncomfortable having my song used (even by another) to cover up the soundtrack of a theatrical trailer of a movie like Batman…because Warner Brothers certainly have means to enforce their copyrights.

Fundamentally it comes down to intent. If we were talking about a mashup created by David Usher, where he used a clip and name (i.e. Batman) to promote himself, I would say that is essentially the same as what was done through the ad.

That is where the major difference lies. The mashups of David Usher songs with various pieces of video, etc., were not created by David, they were created by fans. These were not attempts to build popularity from within, it is not David’s means of building his brand, this is organic and comes from already having a solid brand.

If a fan of Daniel’s were to post a note on FaceBook for example saying “If you like David Usher, you should check out Daniel Ghattas”, this is very different than if Daniel creates an ad saying the same thing.

Anyway, I’ve really enjoyed following this conversation. David, great blog.

If I were popular and Coke used my name in one of their ads, without my approval, it would be wrong because they are selling a commodity that has nothing to do with my music or music in general. That’s why sponsorships exist. This is an example of non-music cross-marketing.

Marketing music to music lovers is a very different concept. Artist based recommendation tools are considered acceptable and desirable, by most people, in allowing fans to discover new artists. If not, marketing tools like last.fm, indiscover.net, MusicStrands, Yahoo LAUNCHcast Radio, Amazon.com music’s store, MySpace Music, iTunes music store, and the hundreds of others wouldn’t be existing and thriving. They are tools no different than an artist recommending herself/himself in a facebook ad because in both cases the targeted artist’s fan base is being engaged in order to sell a new artist; without that target artists’ approval. No matter who the recommendation comes from.

If an ad’s wording falsely claims that Popular Artist endorses or Small Time Joe, it’s a different story. If the ad simply suggests the viewer should check out Small Time Joe, because they are a fan of Popular Artist, it’s not the same as using Popular Artist’s name to sell groceries, soft drinks, financial services or non-music related items.

In the case of Beacon, the ads were using private users to promote various services and products/commodities. That is totally unethical from a marketing point of view; they are individual users, not public names. However, David Usher or any musical artist who makes their music available to the public should realize that music cross-marketing exists and isn’t unethical unless the claim is false, or inaccurate.

Shannon, I agree, usually mashups or covers are supposed to support and in a way promote the original artist and show creativity. However most of the time there are other intentions, masquerading under the pretense of supporting the original artist, especially in the case of youtube covers. At least in a facebook ad, the intention is clear: an artist basing himself on your musical tastes, hoping you’ll discover and buy his music.