The Creative Commons dilema

Creative Commons, or CC, has become a popular mechanism for creatives who want an easy way to distribute their intellectual property to the world.

Songwriters, artists, and producers regularly post their music on the internet under a Creative Commons license so that others can freely download, enjoy and share their music with others.

Creative Commons is great for this, but it does have its drawbacks, and in this post, I’ll be sharing some thoughts on the pros and cons of licensing your music under one of the many Creative Commons licenses available.

Love it, hate it. Doesn’t matter. The law is the law

Some people think that all art should be free. Others disagree, arguing that art has value and that artists deserve to be compensated for their talent.

Some artists say they do it for love, they don’t care about the money; they just want people to enjoy their work. Others love their art so much that they want to do it as a full-time job and soon realize that the only way to pay the bills is to charge money for it.

Many among you may also be thinking that all this talk about copyright, laws, and music licensing is just a waste of time and only relevant to publishers, record companies, and the rich and famous who’s music is playing on the radio right now.

Whatever your views or intentions for your music, the fact remains that if you create and fix an original work, that work is automatically protected by law – whether you like it or not!

Under copyright laws, your music is the benefactor of legal protection and you, as the rights holder, have certain exclusive rights in the control of your music. In other words, only the copyright holder is free to exercise these exclusive rights while others are prohibited from using the work without the holder’s permission.

When it comes to music, we are also typically talking about to two different copyrights. The composition copyright, and the sound recording copyright. Your rights as the rights holder may apply to one or both of these copyrights, but for the purposes of this post we’ll just be talking about our exclusive rights, as rights holders, in general.

The descriptions and definitions of these exclusive rights do vary slightly from country to country but generally include the right to:

Bottom line: you are the legal owner of what is considered to be your intellectual property and giving it away or sharing it is not as easy as you might think.

What this means to your audience – i.e. those who you want to share your music with – is that you can take them to the cleaners if they in any way infringe upon your legal rights by, for example, downloading, copying, sharing, changing or performing your music, without your permission.

So if you want others to hear, use or abuse your music in any way, you need to give them permission to do so. This is where licensing comes into the picture, and Creative Commons gives you a quick and simple solution to this by providing pre-written licenses that can be applied to your music.

What is a ‘license’

Given that we are talking about Creative Commons licensing, I think it would be a good idea to give the term ‘license’ a usable definition.

According to The Free Legal Dictionary by Farlex,  the term license is defined as:

The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

In other words, you and you alone have the right to make copies of your master sound recording and distribute them, or to have your music playback on a website. If you want to allow someone else to be able to do that, then you need to provide them a license and give them permission.

So with that cleared up, let’s talk about some of the pros of using Creative Commons licenses to distribute and share your music.

Creative Commons: The pros

Creative Commons licensing makes it easy and cheap to be able to put your music on the web and to allow fans to be able to freely and legally download, share, and use it. This is something that both amateur and professional musicians are often keen to do.

Creative Commons provides a selection of pre-written licenses (written by legally savvy people of course) that can be applied in many different scenarios. All you have to do is to select the most suitable license and display it, along with any instructions, with your work. No need to attempt to write your own legally correct licensing statements or to employ an expensive entertainment lawyer.

The limit of what is allowed and what is not allowed is controlled by selecting the most appropriate license for your needs. For example, you may want to allow others to create new music based on your existing work (i.e. derivative works) or to limit the use of your work to non-commercial applications only  – e.g. sharing with friends is fine, but if they want to use it in their next blockbuster movie then they must strike a new deal with you.

Its worth noting that you cannot modify the terms of a Creative Commons license. For example, you can’t add on the statement, ‘Only for use on this website’ in an attempt to limit access to a licensed work to a single website. Any such statement would break the Creative Commons license.

In response to the question, “can I change the license terms or conditions?”, the Creative Commons website states in their FAQ:

“Yes—but if you change the terms and conditions of any Creative Commons license, you must no longer call, label, or describe the license as a “Creative Commons” or “CC” license, nor can you use the Creative Commons logos, buttons, or other trademarks in connection with the modified license or your materials.”

They go on to explain:

“Modifying licenses creates friction that confuses users and undermines the key benefits of public, standardized licenses. Central to our licenses is the grant of a standard set of permissions in advance, without requiring users to ask for permission or seek clarification before using the work. This encourages sharing and facilitates reuse, since everyone knows what to expect and the burden of negotiating permissions on a case by case basis is eliminated.”

All fair enough, and surely another positive aspect of the Creative Commons license.

When it comes to assigning rights, Creative Commons licenses provide a combination of the following options:

Attribution (BY)

All CC licenses require that others who use your work in any way must give you credit the way you request, but not in a way that suggests you endorse them or their use. If they want to use your work without giving you credit or for endorsement purposes, they must get your permission first.

ShareAlike (SA)

You let others copy, distribute, display, perform, and modify your work, as long as they distribute any modified work on the same terms. If they want to distribute modified works under other terms, they must get your permission first.

NonCommercial (NC)

You let others copy, distribute, display, perform, and (unless you have chosen NoDerivatives) modify and use your work for any purpose other than commercially unless they get your permission first.

NoDerivatives (ND)

You let others copy, distribute, display and perform only original copies of your work. If they want to modify your work, they must get your permission first.

 

So let’s be clear about this. By using a Creative Commons license, you are not giving up your legal rights or ownership. It’s still your property, and that’s whether you like it or not. A license is simply a legal instrument that allows you to assign specific permissions to others regarding usage of your intellectual property (your music in this case).

Without your permission, anyone downloading, sharing, re-mixing or using your music can be accused of infringing on your rights. See you in court, buster!

Clearly, a key benefit of using Creative Commons includes the ability to easily apply licensing to your music when you want to distribute it to the masses and without the need to negotiate the terms of the license on every occasion.

It also provides the licensee (your audience) a well-defined set of requirements to which they must comply in order to stay on the right side of copyright and intellectual property laws. Any breach of these terms will void the license agreement and make them liable.

But what are some of the downsides, pitfalls, or cons to be aware of when it comes to using Creative Commons?

Creative Commons: The cons

All well and fine. But make no mistake, once it’s out there, then it’s out there for good. Once applied, a Creative Commons license cannot be revoked. I say again, a Creative Commons license cannot be revoked!

Don’t let me confuse you though, I am talking about revoking a license here. You may, of course, stop licensing your music at any time.

So for example, let’s say you published your amazing song on ProCollabs and gave it a Creative Commons license. Your fans came along and downloaded your track for free. You also picked up some new fans who were just browsing the site for some new cool indie music – they found your track and also download it. Everyone’s happy.

Six months later, your song is so popular you decide that you no longer want to give your music away for free and remove the Creative Commons license with the intention to stop new fans from being able to download your track for free. Instead, you put a price on it and look forward to some major sales.

The next day, you find your song posted on another website, with a download link. It’s being offered for free to anyone who wants it. They are displaying the song with the correct Creative Commons licensing information and attributing credit to you in accordance with your original Creative Commons licensing requirements.

What can you do? The answer is, to ask them to remove it and hope for the best! Since they obtained the track under your original Creative Commons license they have every right to post the track and there is little you can do since the license that they obtained the track under is irrevocable.

Hint. When considering using Creative Commons to publish your work, think very carefully about any future plans and implications that could be relevant to you and your music.

For example, if you didn’t use the “non-commercial” license option, the next global all time number one blockbuster movie would be able to take your song and use it for their theme tune without paying you a single penny.

The argument of the artist is typically exposure over profits. Personally, I would love to have my songs used in big movies. And I would argue that if that were to happen, even if I received no money, the exposure would bring many benefits and opportunities. However, when it happens, I submit that I might feel more than a little pissed that whilst the movie is making millions at the box office, I am receiving nothing.

People have the tendency to be very accepting beforehand (when we are desperate and will give anything to get it), and unaccepting after the fact (when we are now deprived and perceive the situation to be somehow unfair). Hence why I would suggest you think very carefully before making any decision about using a Creative Commons license.

From the point of view of a collaboration, this might be something important to discuss before setting out on your collaborative journey together. If one of the collaborators has the intent to sell or license the finished song and the other just wants to post it on their site as a free download, you already have the potential for a messy ending. When it comes to music collaboration, agreeing to these and other expectations up front is always a great idea!

CC and music collaboration

Talking of collaboration, it is not uncommon to see music collaboration sites making use of Creative Commons licenses as a means to share ideas and tracks in a collaboration project.

There is an inherent challenge to creating a truly collaborative environment online. There are other considerations when compared to sitting in the same room together and there is typically going to be much more concern over the possibility of the stealing of ideas too, since many times, online collaborators do not know each other personally, so there can be trust issues.

To address this, Creative Commons is often seen and used by collaboration sites as the means to tackle this challenging issue. But unfortunately, I am of the personal opinion that often times it is just misunderstood and can be misleading to collaborators, who can, as a result, have a false sense of what is actually going on in the background and what is potentially (legally) required of them once the song is finished.

On ProCollabs, there are two points in which Creative Commons may come into the picture. 1) At the time of collaborating on a project (i.e. songwriting, performing, and production), and 2) after completing and publishing your completed song. The first of these two points is where the big challenge lies and it is worthwhile for the collaborator to understand what the possible issues could be.

1. Songwriting, performing, and production

This first step is, of course, the core of any online collaboration. It’s where we get together [virtually] to write, record, mix and master our music in a collaborative way.

On ProCollabs, a project manager may allow for uploading of tracks under a Creative Commons license. The point of this option is to allow contribution of simple elements that are not in themselves musical, or at least, are elements that can be separated from the composition of the song itself. So things like sound effects or spoken word would be good examples of what may be typically contributed as CC.

On the other hand, if you were to upload your guitar track as CC on a project that already has the arrangement and melody laid out, you need to be careful that you are not infringing on the rights of the author of the original composition. It is important to realize that if you are publishing and licensing it, then it must be something that you own or at least have the legal right to do.

Think about this scenario: I start a project and upload my piano composition – chords, arrangement, and melody. If a vocalist were to come along and upload a vocal performance, using my melody, under a Creative Commons license, they would be, in effect, using my composition in order to create their track and then licensing it back to me and others to use or build upon. Sure, the performance would be original and owned by the vocalist, but the original composition would be mine.

If someone were to get their hands on the vocal recording, then they would be able to create a derivative work, without my permission, since it is published under a Creative Commons license.

This clearly isn’t going to work out well if we are truly collaborating in the normal sense of the word! We could argue the point that chord arrangements can’t be copyright protected and all that jazz, but in the end, as the composer in this project, would I really want to accept in a CC licensed performance of my song? Well, that’s up to you. But make sure you are aware of what is happening in this situation and don’t complain when a new song pops up that sounds just like yours!

Where things get particularly messy, in my mind, is in the fact that for each licensed work you are required (under Creative Commons licensing terms) to display the proper attributions, including links and other relevant information. And that just isn’t going to play out well when you have completed the song and it consists of 20 or 30 individually licensed works!

Point being, if you are collaborating with musicians online, always be aware of the terms and arrangements with regard to copyright management in the project’s writing and production stages.

This stage is akin to sitting in a studio together and writing and producing a song. It seems ridiculous to me that each time someone in the room comes up with an idea to try they would then license it and hand it over so that someone else in the room could then add their ‘licensed’ contribution. This stage of song creation needs to be collaborative, trusting, and free, and Creative Commons licensing is just inappropriate at this stage of a project, in my mind at least, bar a few specific circumstances.

Also, do be aware that anything contributed to a collaboration under a CC license, can, of course, be re-used in another project without your permission.

2. Music publishing

On the second point, however, once a song is completed, of course, it makes sense that this is the point at which you might well choose to publish your song under a Creative Commons license.

As was mentioned earlier, it’s a good idea and just good etiquette to agree with any co-owners if you intend to release a song under a Creative Commons license.

Which license should I choose?

When it comes time to choose which license you will use, do spend time understanding what the different options are.

The most restrictive and safest license is the attribution, non-commercial, no derivatives (BY-NC-ND) option, and not a bad place to start if you are unsure.

In the end, it really is a personal choice and depends on your goals.

For example, artists who really are just doing music for fun and have not a care in the world when it comes to the business or commercial side of music might simply choose to license their music as CC-BY (Attribution). This is considered to be, by Creative Commons, a “Free Cultural Work”. Basically, giving the most freedom to others who can pretty much do anything so long as they attribute the work back to you – that includes selling your work and keeping the proceeds, by the way.

On the other hand, a business minded artist may release a single song from their latest album under a CC-BY license, with the idea being to generate interest by allowing fans to download and freely share the song as a way of marketing the album, hoping to bring in paid punters for the album sales and live concerts.

Note that, for the purposes of collaboration (should you chose to go the CC route discussed earlier), clearly a NoDerivatives (ND) license will be utterly useless!

The Creative Commons website provides this useful tool to help you through the process of selecting an appropriate license.

Creative scams

Before finishing up with my rant, I wanted to relate another familiar aspect of the online world which is applicable to the domain of Creative Commons – and that is the unpleasant subject of fraud.

For the most part, anything that is posted online can be taken down with a click of a button. And that includes once-licensed Creative Commons works.

A potential issue for users of Creative Commons works is the fact that we often download and use CC works, but other than the CC notification on the site from whence it came, what evidence remains that it was ever licensed as a Creative Commons work in the first place? Typically, none.

I recall reading a few years back about a number of scams that had taken place wherein business owners had been using Creative Commons licensed photographs and images from the interweb (for their blogs and promo I believe) only to get a letter in the post with all the might of a legal firm threatening justice due to copyright infringement of a certain photographer who’s picture they had used without permission.

As they scrambled to explain that the images were under a Creative Commons license, they quickly realized that they couldn’t even remember what site they had taken the images from, let alone have any proof that it was downloaded under a Creative Commons license!

If you are doing anything serious with your music and you are, for example, making use of cover art, sound effects, or anything else that is covered by a Creative Commons license, or if you are a business who is using Creative Commons licensed music for your videos or corporate presentations, then be sure to take a screenshot – at least – and ensure that you keep sufficient proof when it comes to the permissions that you have been given. Just sayin’!

Finally

I’ve tried to share my thoughts here on the very popular use of Creative Commons licensing and with a particular interest in music and collaboration.

I am personally convinced that CC is both good and evil. Though, in all fairness, any issues or complaints are more often due to misuse or a lack of understanding on the part of the rights holder than the Creative Commons licenses themselves. In the end, you can use it or not use it – it’s always your choice.

In my mind at least, it is certainly key that any use of CC licensing should be very well considered ahead of time if you intend to make the best use of it.

When it comes to publishing my own music under Creative Commons, I for one have changed my mind no less than one hundred times over the past decade. Mostly, the ad-hoc decisions I’ve made on whether to use or remove CC licenses from my music have been driven by contradictory thinking and mood swings going from an ‘I don’t care, I just want to get it out there’ attitude on the one day, to the ‘I want to do this for a living’ mindset on the next.

What are your thoughts on Creative Commons licensing? When and how do you use them? Leave your comments below and let us know. Thanks for reading!