Copyright Talk

I went to a seminar last night led by a couple of prominent entertainment lawyers. The subject of the talk was how to make money with your music, and it was aimed at songwriters, who all own copyrights. Most of the audience seemed to be made up of musicians who were working to some extent, but not yet making enough money to support themselves exclusively from their music activities.

So it was with chagrin, although not surprise, that I heard the following question come up during the Q&A section: “What do you think about the Creative Commons license?”

Creative Commons is an organization that developed some standardized templates for copyright owners to use if they want to grant a blanket license for the use of their work without requiring individual permission to be obtained every time someone wants to use the work. As such, the CC licenses are a useful thing and I am supportive of their project.

However, Creative Commons has tended to pitch itself, and is certainly perceived by many, as an alternative to copyright, when in fact it is no such thing. It is merely an exercise of the rights that a copyright owner has. The people that sing the Creative Commons song tend to have a very mistaken belief that copyright laws somehow impede their ability to be successful with their work. Wrong, wrong, wrong.

A copyright owner can grant any permission they want for the use of their work. But they can’t grant permission to use rights they don’t own. So for example, an independent songwriter wants their song to become a big viral hit on YouTube. Even though the songwriter could grant permission for anyone to make their own video and upload it, the songwriter mistakenly believes that no one can do that because copyright prevents it (copyright prevents unauthorized use). So they turn to Creative Commons. BUT, what if songwriter doesn’t own the copyright in the recording itself (the master rights)? Songwriter can’t grant permission to use the recording, either with or without Creative Commons. They can only grant the right to use the song, either in printed form or as a re-recording.

Suppose the song is noticed by a company that wants to use it in a commercial. Big money is possible. Does the songwriter want to give it away for free now? No, they want the protection of copyright which not only allows them to ask money for the use of the song, but also allows them to say no to the company if the songwriter doesn’t want their song associated with, say, a stool softener.

But suppose the songwriter does say okay to the company. Now the company wants to make sure that they actually have the right to play the song. They will want not only the permission of the songwriter, but they will also want to make sure the songwriter owns the right to give permission for the recording. The involvement of any type of label, publisher, partner, other musicians, and no written agreements as the nature of any of the relationships, and no way to contact some of the folks, could leave the company with a concern about whether it is clear that the songwriter has permission to grant the use. If they company is uncertain, they may choose to use a different song instead. The failure of the deal is not the fault of copyright, its the fault of the songwriter for not having proper paperwork and a paper trail.

Which all leads me to the point here - in the music world especially, copyright is complicated and difficult to understand. I think the Creative Commons hoopla is largely the product of a desperate need to simplify a system that is very difficult to comprehend. But simplification is not necessarily better. Read, learn, talk to people, and above all, get advice from someone who should know before you record or license anything.