"No Endorsement" -- aligning the interests of creators and fans

My latest Locus column, "No Endorsement," talks about how print-on-demand, 3D printers, and other technologies that make products available when people want them change the economics of fannish activity, fan art, and homemade merchandise. I propose a ""No Endorsement" badge that fans could use that indicates, "The creator of the work from which is this derived hasn't reviewed or approved this; but s/he is still getting a piece of the action."

Here's how that could work: tens, hundreds or thousands of fans with interesting ideas for commercially adapting my works could create as many products as they could imagine and offer them for sale through i.Materialise or Shapeways. There's no cost - apart from time - associated with this step. No one has to guess how many of these products the market will demand and produce and warehouse them in anticipation of demand. Each product bears the ''no endorsement'' mark, which tells you, the buyer, that I haven't reviewed or approved of the product, and if it's tasteless or stupid or ugly, it's no reflection of my own ideas. This relieves me of the duty to bless or damn the enthusiastic creations of my fans.

But it also cuts me in for a piece of the action should a fan hit on a win. If your action figure hits the jackpot and generates lots of orders, I get paid, too. At any time, we have the option of renegotiating the deal: ''You're selling so many of these things, why don't we knock my take back to ten percent and see if we can't get more customers in the door?'' Setting the initial royalty high creates an incentive to come to me for a better deal for really successful projects.

No Endorsement


  1. Sounds like a fine idea, as long as the original artist opts in. If the original artist opts in, and the derivative artist opts in, this would work like any other private contract.

    As you point out, auditing and enforcement would be a problem, but it would be a separate problem, and one that’s already a problem without this system. I don’t see how using this system could make auditing/enforcement more of a problem in any way.

    If the original artist doesn’t opt in, then I don’t see this as viable. I personally can’t imagine any incentive to not opt in–it seems like something an artist ought to be happy to do.

    But I’m sure you’ve met some creative types that are…how to say this nicely?… controlling to an unhealthy degree. There are definitely artists out there that would not choose to opt in.

    1. But I’m sure you’ve met some creative types that are…how to say this nicely?… controlling to an unhealthy degree. There are definitely artists out there that would not choose to opt in.

      I don’t think this is entirely unreasonable. Part of your ability to profit from an idea can be tied to the way the general public perceives the “brand”, either in terms of genre or quality.

      If I come up with a series of children’s cartoon stories around a set of charming <strike>blue</strike> green gnomes, and it takes off, I can envision the market share for my own productions taking a hit if there winds up being a series of highly publicized but unprofitable hard-core bestiality porn movies based on my work and cheerfully exclaiming “No Endorsement”.

      (That’s probably a bad example — I don’t think you get much protection from that under the best of circumstances, but you get my point, I hope.)

  2. So, there’s a Cory Doctorow action figure in the works?

    Does it come with cape, and goggles? What about the balloon?

  3. “If your action figure hits the jackpot and generates lots of orders, I get paid, too.”

    Why do you deserve to?

    The whole ‘derivative’ notion really strikes to the heart of how creativity works. We’d do better to get rid of it.

    Failing that, the badge idea has merit if used as a legal disclaimer. It could be set up to shield the preceding creator from scorn/praise for the second work, and the continuing creator from onerous copyright/trademark peril. Attribution, with a caveat, will still be maintained to salve the egos of anyone affected.

    1. This is to both Anon and Church. If you don’t want to work by their rules, don’t use their shit for your creatively derivative (yes you are being derivative) works. Make your own shit. That should be really easy for you to understand.

      He made original work – if you want 100% of the money, you should do the same.

      Anon 2:08, you want to sell shit you make of the authors’ characters, HIS characters, and make 93% of the profit, and think HE’s greedy if he wants more money. Have you considered that you are the one that’s being greedy?

      Again, if you want to sell shit, make your own, completely original, work – like he did.


      Again, his creative work has actual value – that’s why you want to make shit using it and don’t want to come up with your own, original work. I’m a little shocked you 2 don’t understand that.

      1. We must remember copyright and all of the derivative rights are imaginary carrots offered by kings and governments to induce makers to produce creative works by giving a short monopoly so they can get exclusive royalties.
        The system has been perverted into one where a megacorp speculates or scoops up the rights from the same dead zone that MS-DOS abandonware games occupy, although even that can be nearly impossible with 80+ years of copyright.
        So while I would love to share I feel that anything that strengthens the power of a copyright holder even a voluntary act of sharing will tend to backfire and further encroach on our terribly infringed upon creative rights.
        And that is one reason why our legal and legislative system sort of sucks, if you give up any right or allow the slightest subordination of your rights for whatever reason often leads to the permanent loss of that right either in the courts or in a legislative reasonable compromise law.

      2. He made original work – if you want 100% of the money, you should do the same.

        What percentage of Down and Out does Disney get?

        Under this ‘no endorsement’ scheme, what would happen if someone creates a derivative of a derivative? Would the free money keep flowing up the chain?

        And what about mashups, as was mentioned above? Does this prevent more than four elements being combined? (Sorry, GirlTalk.) How do multiple sets of exclusions get resolved?

        Nah, the more I think about it the worse this looks. It IS better than what we currently have in place, but that’s not saying much. Free up the culture altogether, or at least drastically slash copyrights.

        1. Church, “Free” is fine – I think we should be able to use whatever we want for non-profit art (and tons of copyright law disagrees with me on this point). The issue, it seems to me, is that you want to take someone elses original work and charge for it like it’s your own.

          No, people that make mashups should not be paid as if they made the original 2 compositions. They should, in point of fact, owe money to the original compositions if – and this is a big if – they want to sell it. Girl Talk should never charge for his albums or else, yes, he should be required to cut in all the samples he is using. If he doesn’t then the albums should remain free.

          Even derivatives of derivatives (down a chain) should owe money to the original artist – yes. This is completely fair.

          I’m fairly (actually very) liberal on copyright – I think work should go into the public domain after the lifespan of the original artist – and I think fair use should be broadly expanded so that we can all use whatever we want so long as it’s non-profit. But I draw the line at not compensating living artists for using their original work. Under your scenario, you could take a novel, change 4 chapters and resell it as your own. There’s really no difference between that and a mashup artist selling his work without any money going to the original 2 artists.

          Anyone that has an argument with this I think has to have never done the work that goes into creating original content.

    2. Why do you think “derivative use” is not important?

      I am a photographer, and I have undergone a long training, spent a lot on equipment, and put long hours in producing and retouching my images.

      As long as my art/product is a significant part of a new creation, I want and deserve my share. Of course, one has to decide about the “Schöpfungshöhe” of the derivative work – that’s a German word meaning how much creativity has been put in a work. That’s where “endorsement” comes into play – as creator, I want to be able to decide if and to which terms others may use my work.

      To put this from abstraction into real life, two examples:

      Last week I found out that a designer put a inverse pentagram on one of my copyrighted images and sold that “derivative” work as merchandise shirt for a black metal band. The license for that shirt was sold again to another merchandise producer. I did not see any money, was never asked, never attributed. The original image later was represented by Getty Images …

      Apart from the financial damage done – if I were a devout christian, I would have been upset that my image was used by a satan worshipping black metal band.

      Second example: A product designer took my image, photoshopped a rendering of his product in front, put this into his portfolio and got published on several websites and commercial blogs. No permission, no attribution, no license payed, he even put his logo and name on the image.

      Here, of course, his product is most important – my work is “just a background”. But: the rest of his portfolio is without a background, and my image was the one published most. I feel and am, by copyright law, entitled, to get my fair share of his “derivative use”.

      1. Hello there Martin, I think you hit the nail on the head with that one phrase, “a significant part of a new creation.” In both your examples provided, the photography was still a necessary core of the project – even if it wasn’t the identified focus. Sure the band dropped in a pentagram, and a product designer made your work into “just a background,” but your photography was still a major component of the new pieces.

        Unfortunately, you had no control over the content or context of the pieces themselves.

        The lack of control when your material is out of your hands is why I suggested that in the proposed “No Endorsement” setup, sites list by available artists and content, and list any required legal restrictions on use.

        What I think is interesting (and I could be totally wrong about) is that by participating in a site allowing use of some materials, an artist may find themselves with a stronger case against someone misappropriating their designs which are not general use. For example, I am artist A who designed 1,2,3,4 & 5. I have officially made 1,2 & 5 available for use on a “No Endorsement” site. Artist B uses 4 without my permission. Since I did not make it available on the site, I verbalized my intent that 4 was not usable. My case against B may be stronger because I participated in the “No Endorsement” program.

  4. I think this is a great idea, Cory. It seems to address that middle ground of chance in derivative works. 99% of what is remixed into something else will never hit it big, but why put a moratorium on those derivative works because an artist fears they might?

    nosehat, as for opting in – that’s all about the marketplace. If this idea becomes successful and it’s obvious both fans and artists alike are benefiting both in circulation and cold hard cash, more folks will opt in. Those that don’t, won’t, and their creations will be like a dead language, a note in the history books, instead of an idea that continues to inspire others.

  5. No endorsement is a great idea, I just don’t think I totally understand the royalty thing.

    I think that setting the initial royalty high increases the profitability of outright pirating your IP. Most people know they will probably never make a hit big enough to show up on your radar, so why not just make it, sell it and keep everything? If it’s a flop at least the margins are good (and most products will flop), if it’s a hit the producer makes a lot of money quickly, plays with the finances to hide it and hopes they don’t loose everything when you sue them, and you hope you don’t loose street cred when you sue your fans (like JK Rowling did when she went after the HP Lexicon).

    Aside from that, how many producers are really going to give you the benefit of the doubt that you’ll actually back off on your royalties if the product hits big?

  6. Great idea. I looked at the link he is looking for @ 25% as standard percentage. It seems somewhere @ 5-7% might work. Otherwise the whole concept of having honest people do the right thing disappears, since they think the artist is greedy and the right thing is to ignore the greedy jerk.

  7. For some reason those old PMRC “parental advisory” stickers came to mind. You know, the stickers that were stuck on almost every album in the early 90s. Your idea also reminds me of political campaign TV commercials where the candidate voice overs: “I’m Joe Smith and I endorse this commercial!” Though your “No Endorsement” badges (badges?!) would declare a neutral stance and assert a desire to make money off said pertinent product.

  8. This is where the NC part of the license Cory uses gets weird for me. Why not something like the creator endorsed mark? http://questioncopyright.org/creator_endorsed — I wish the NC license provided some clear boundary (very unlike the concept of fair use), but to my mind the NC licenses just move the blurry boundary somewhere else, to some other area. More permissive, yes, but still blurry at the boundary.

    That said, a big “Thank you” to Cory for trying to make sense of this new world, and (perhaps most importantly) sharing the financial data from your experiments for others to see. So, thanks for taking the time to think these things out. It’s really appreciated.

  9. Isn’t this essentially the way Italian and (Belgian? Dutch? German?) copyright law used to work when it came to live recordings? That is, you could release a live recording without the artist’s permission as long as you paid the artists a certain percentage (or held it in escrow, as most artists’ representation refused the tacit approval implied by their accepting payment). In the end, EU law normalization eliminated such loopholes.

  10. Isn’t this exactly how the system works right now? Except that instead of putting “No Endorsement” on something, they just don’t say anything at all. Because let’s face it, if you’re dishonest/untalented, why should you bother putting “No Endorsement” on something? And what recourse does you have if they don’t use the “No Endorsement” logo than you have now?

    Honestly, I like the idea of Creative Commons licensing, but it’s turning into an elaborate charade of stamps and boilerplate far more jargony, distracting and arrogant than existing the copyright law it was designed to replace/supplement/stick a thumb in the eye of. Why is the answer to a confusing, inefficient, irrational system to add a second confusing, inefficient, slightly less irrational system?

    In short, if someone is infringing your copyright, there are existing laws you can use.

    1. I confess I’m always a bit perplexed by people who think Creative Commons was “designed to replace/supplement/stick a thumb in the eye of” existing copyright law.

      It wasn’t.

      It hasn’t “turned into” a system of “stamps and boilerplate.” It is – and always has been – a system of stamps and boilerplate.

      That’s what it was always intended to be – a set of standardized boilerplate licenses and corresponding easily-recognized logo stamps, to make it easy and convenient for creators and users alike to license copyrighted material, under existing copyright laws.

      It is not – and was never meant to be – anything but a way of using existing copyright law.

      It’s not “anti-copyright” or “copyright-free” or “an alternative to copyright.”

      It’s just copyright licensing in a convenient, standardized, easy-to-use form.

  11. Or the producer could set their own royalty level, authorising it for “Non-Endorsed, 20%” or “Non-Endorsed, 5%” or whatever, or maybe requiring a higher cut if it could be considered competing, like if you want to make a book derived from a book, you pay 20%, but anything else is 5%.

  12. Cory, Any chance of writing a book about the loss of Anonymous remailers and being identified on the web by every device he has and how the hero just can’t get away from context ads that follow him around. He is going to have to defeat the evil corps with cruft data and every time he looks at anything his smart bot looks at the opposite for him.

    I’ll settle for 2% – Call me and we’ll do lunch. J

  13. I have also taken the liberty to make a symbol, and have already put it to use! Here’s my image, also available for anyone to use with no copyright.


    I’m using it for the design I’ve just uploaded to Shapeways. You can order the little character from the cover of Down and Out in the Magic Kingdom. Check it out:

    1. Tood: Note, by the way, that your symbol says “25% of the profits“, while Cory’s proposal in Locus specifies “a fixed percentage of the gross“, which he suggests should start at 25% – which he says is “a high percentage without being punitive”.

      (Personally, I think 25% of the gross is impracticably high, and will keep this idea from ever catching on. But YMMV.)

      1. Yep you’re right… I see what you mean. In this case, it’s just like a dollar-fifty difference or so.

  14. We wouldn’t need these questionable legal hacks if copyright only lasted between maybe a few months due to modern fast publishing and distribution and seven years.
    Even if we fix copyright until regular people can secure finance and advertise like interlocking entertainment distribution megacorps do there will not be equality for producers of creative works.

  15. As someone who designs a lot of product ideas based on pop culture (www.davesgeekyideas.com – sorry for the plug), this dilemma is mirroring the same thing that happened with the advent of the internet: we can seek out our own content and what we want to consume to accommodate our individual tastes.

    Now people want many particular items that will suit their own lifestyle, no longer content to accept the mass-produced drivel they’ve been bombarded with previously.

    And giving people the means to create what they want is replacing “what do I want…?” with “whatever I want!” and that kind of appeal is undeniable.

    I know IP holders can’t please everyone, but they should be pro-active in negotiating ‘open licenses’ with Shapeways and other like companies. If Joe Schmo wants to make a one-off ‘My Little Pony’ toy, then Hasbro should get a cut (but Joe cannot re-sell the item online).

    There has to be some middle ground, before we get into another music/napster scenario.

  16. Yeah, but what about A858DE45F56D9BC9?

    way to delete a post, dude. So, obviously, they contacted you. What’d they say? Here’s what I wrote in response to that post, which errored when I submitted it since you took it down in the time it took for me to write it:

    This guy sure is active. the beginings of the posts seem to indicate the date, but there is some lag in effect presently. The most recent post is posted today, the 3rd, by Reddit; but begins “20110702…” but before you say “time zone,” the third most recent starts “20110703…” and they’re only 17 minutes apart. then again, maybe there’s multiple people around the world posting through this acct.

    With it’s ease of access, anonymity, and permalinked posts, it’s a wonder there isn’t more of this on Reddit, really.

    Occam’s razor makes me think it’s something pedestrian like drugs. Presumably, any agency with political power behind it wouldn’t use something so public. then again, maybe that’s what they WANT us to believe. /my attempted post

    this is in reference to the reddit acct and subreddit under the name A858DE45F56D9BC9, for anyone interested.

  17. For those who haven’t read the full article, I recommend it. The link (provided by Cory) is located directly below the quoted section in red, and simply reads as the title “No Endorsement.”

    It answers a few questions that people have asked here in the comments:

    First, it sounds as though the intent is for artists to participate from the start.
    My own comment here: Perhaps a list on each site of supporting artists and their available creations would allow participants the freedom to feel the ability to create objects without wondering if they would be prosecuted for doing so.
    Also, since there are some areas where limits should be considered, for example Hello Kitty sex toys, perhaps fair warning of what is not acceptable due to brand ownership could be posted in a legal comments section for each participating artist? Note: I mentioned “available creations,” because not every artist wants all their characters/objects/locations/etc. reproduced, better to state what it’s okay to use than not, I think.

    Next bit, in the article, Cory does explain that he is suggesting the use of the “No Endorsement” mark after he discusses the Artist Endorsed mark. Just lettin’ ya know it’s in there.

    Third bit, the non-punitive percentage. It’s not truly punitive, but it is cautionary. Think about it. Think about how easy it is with all the digital technology we have today to just directly rip off the image of a famous cartoon character and then incorporate him/her into an otherwise cheap design. Now, think about how the people who are creatives making those designs might be successful on their own without the use of another person’s concept if it was less tempting to do so. If the overall design using a character is good enough to succeed as a product, then both the original artist and the new one will benefit, and the percentage cost may be lowered, so it seems there’s no punishment, just a warning to design well in the first place.

    Last bit, Cory makes the point that enforcement of this would be all kinds of gnasty. I agree. In fact, I think enforcement, and ensuring artists that their intellectual property will be protected, is probably the biggest hurdle to an idea like this.

  18. Other posts have pointed out that (a) everything derives from everything else that went before it, and (b) everything that did not exist before is original. The legal viewpoint is much more binary: either you acknowledge a derivation or you don’t. That’s the nature of all laws. If we were all reasonable then you would only need one law saying “Don’t do bad stuff, or you will be punished appropriately”.

    Real life is less binary. Someone invents a song, someone else arranges it, a third revives it, and after fifty generations you have a folk song that the original writer might not recognize as their own work. We all have some sense that there are degrees of derivation, and there is some cut-off point beyond which punitive measurements are not appropriate.

    With ‘No Endorsement’, Cory wishes to have some way of saying ‘I acknowledge dept to another creator’ without heavy legal involvement. The price will have to be high (25%) for this not to be a back door for a flood of “No Endorsement’ Bolex watches from Hong Kong. It will probably have to be part of the gross profit so you can’t make the figure vanish by creative accounting.

    Yep. 25% of the gross is a lot. Most of us feel that the overheads for short-run prototyping might qualify for a reduction of some sort. But that gets us into arguing how much of our Bolex watch was made by a printer. Which is a fine point of view for legal people who have children going to college, but not good for the rest of us. Cory’s proposal was a workable starting point: if you have a simple argument that justifies a smaller figure without making ‘No Endorsement’ a general letter of marque (arr!), then let’s hear it.

    1. The law may be binary, but the question is still complex. For example, look at the changes that have occurred as we’ve progressed through music sampling: http://en.wikipedia.org/wiki/Sampling_(music) That history alone shows some recognizable derivations are graced with original status through wit.

      The reason I struck on Martin_L’s phrase, “a significant part of a new creation,” is that as long as the content of the original creator stands as a significant portion of any new creation, it still holds original, creative value, (it’s more than just background noise) and I think that by being willing to use a “No Endorsement” tag, a second creator is stating debt.

      (Sorry if this is repetitious, I try not to be.)

      I don’t think that the 25% price tag is exorbitant. Rather, I think it fends off both those who would be producing Bolexes, and those who need to take some time to hone their craft. To find a final working percentage probably needs to be worked out site by site to prevent costs from being too prohibitive for anyone to actually start up. After all, this is intended to provide access to development to those who want to work alone, inexpensively.

  19. This is one of those simple/complex scenarios that is almost impossible to predict what will happen. But, at least something will happen, and I don’t think that the worst that can happen will be any worse that it is now. So let’s just try it.

  20. It would be nice to be able to measure creativity. In theory we could do this. If creativity is an ordering process, it would have the same units as entropy. We might talk of the creativity in electron-volts per Kelvin.

    But creativity is not something you can easily measure with a meter. Take the Shepard Fairey “Hope” poster. He copied a photo, adding a poster like color scheme. However, the ‘Bamma does the “gazing thoughtfully into the future” pose quite a lot, and there are many pictures with almost exactly the same expression. Arguably SF could have chosen any of these. Indeed, he could have compiled an average image from all those that existed, and no-one in particular could have sued. But there was a particular picture, so all the rights of the particular expression were judged to be the property of a particular photographer. A lot of minor derivation from a lot of people is OK, but the same amount of derivation from one person which leads to an almost identical artwork is not. I am not necessarily saying the court decision was right or wrong; just that the principle seems a bit random and unphysical.

    I am not a big fan of trusting the courts to determine what is significant derivation. The music sampling example reached its present state of understanding only after huge and expensive court cases; and we would probably have to go through the same exercise for each medium in turn to establish what the limits are. In the process, many small people will be wiped out by the expenses, or give up because of the fear of expenses.

    Setting aside a known amount of profiles to recompense acknowledged inspiration seems to settle one class of potential cases. I think the indemnity should be limited to the amount set aside, provided the “No Endorsement” process was followed properly. It won’t solve the tricky cases, where ownership is contested. It won’t solve all sorts of things. But it is a start.

    1. Indeed, jackbird: this is my main problem with this system. If you mashup a collage of a few hundred works, but then you suddenly become profitable, then you could be due to repay far, far more than you ever earn: and the more you earn the more you owe!

      It should be “25% split evenly between all creators of works used that implement this license,” or it definitely does become drastically punitive very quickly, and ways to game the system become too easy.

      Like, I’ll separately license each character, so I get 50% on slash romance, and 75% on threesomes…

  21. …and once again, “25% of the gross” has morphed, this time into “25% of the gross profits.” :-)

    I think what Cory meant was “25% of the selling price”, not “25% of the ‘gross profit'” (whatever that is!) but maybe not…

  22.     Fennyman
    How much is that, Mr Frees?  
    Twenty pounds to the penny, Mr. Fennyman. 
    But I have to pay the actors and the author. 
    Share of the profits. 
    There's never any. 
    Of course not. 
    Oh, oh, Mr. Fennyman! I think you might have 
    hit upon something! 

    –Tom Stoppard, Shakespeare In Love

  23. This is a great idea, but it shouldn’t be opt-in for artists, it should be a settled part of copyright law that allows for derivative works while clearly labeling them as such. It’s not to the public benefit that anyone be prevented from creating derivative works that continue to enrich the original authors. Yes, some artists would like to prevent people from bending their creation intellectually in certain ways. But this artistic control is 1) imaginary (since the audience is already capable of imagining the artist’s creation be interpreted in a variety of ways, and the author is incapable of controlling that), and 2) not to the public benefit, which is generally served poorly by having less artistic variation rather than more.

  24. I am slightly surprised that you fail to take into account how things often draw heavily from more than one source as inspiration.
    Who should get the 25% money for a T-shirt featuring a “those are not the droids your looking for” featuring Terminator and Robocop stills cleverly photoshoped into a hug? Or would the creator have to pay 75%?
    My hypothetical T-shirt may arguably be seen as fair use, but I believe the question is important because implemenmting a scheme like this will probably have the side effect of actually strengthening copyright and suchlike, when only a cheapskate bastard would choose not to use the No Endorsement programme

    And on a side note, a reply:
    @mike – No one has ever created a completely original work, something that is becoming more and more clear in our modern socitey

  25. The cynical side of me thinks that this sort of an arrangement would be rife for corporate abuse.

    We know that corporations create ‘grass roots organizations’ today for the purpose of lobbying. Wouldn’t this approach provide incentive to do the same for the purpose of associating their brands with ‘fan created work’?

    Let’s say that a corporation founds a ‘artist collective’ (perhaps based out of a rural region of China, with very long working hours and 5000 members), and that individual members of said artist collective then produce series of Hello Kitty AK-47 accessories, oil barrels with the WWF Panda or Greenpeace logo on them, and CCTV cameras with Cory Doctorows face printed on the side?

    Those individuals in rural China would of course be happy to share their work with the respective corporations that helped found their collective, and the corporations would of course pay these individuals very low fees for the work they have done, so Sanrio, WWF, Greenpeace and Cory respectively would see, say, 0.2 USD for each of the works above.

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