Here’s a nightmare scenario for you–you hire someone to create a work, co-write with anyone, record with anyone, and you find out after the services were rendered or the works were created that you’re dealing with one of the gullible creatures who signs up for Creative Commons. If that person has made the work (or a version of the work that your work is based on) available under a Creative Commons license, you’re potentially in trouble. (That’s a bit of a copyright joke, “made available” under a Creative Commons license, get it?)
This is particularly true of co-writes that are not works for hire. Remember–the Creative Commons license is not currently capable of dealing with co-writes. It not only anticipates that each work is created by a single person (which is probably as likely to be true in the case of a song as it is likely that the work was a co-write by at least two songwriters), but it does a very, very poor job of distinguishing between the two copyrights that every first year music lawyer knows are present in a sound recording–the copyright in the sound recording itself, and the copyright in the song that is recorded in the sound recording.
It’s not surprising that the financial backers of Creative Commons (that have been announced, anyway) are all tech companies (including Professor Lessig’s benefactor, Google) that probably really want to believe that they’re getting some rights when they get a Creative Commons “audio” license. Pauvre petite, you get what you pay for! Or maybe you don’t.
In any event, while all the in-house lawyers will be nervous about changing their forms in case it might show that they were not confident in their rights, it’s probably a good idea to include a Creative Commons disclaimer in any situation where you are acquiring rights, or in any co-writer agreement (or joint administration agreement).
While we can all come up with our own language, it seems that such a disclaimer should include at least the following:
An express representation that the author has not previously granted or purported to grant any rights under a Creative Commons license;
An express representation that no prior versions of the work created before the rights grant was executed were made available under a Creative Commons license;
A promise that the author will not grant or purport to grant any rights under a Creative Commons license in the future, or will not do so with respect to the particular work;
An agreement (most likely between authors) that neither author will ever grant any rights under a Creative Commons license; and
If a songwriter agreement, and agreement by and/or between or among the songwriters that they will not purport to grant any rights in the sound recording, including by means of a Creative Commons “audio” license.
There is some overlap among these points, but each is worth thinking about and seeing if it could apply to your situation.
I would also point out that many of these issues apply to visual works, audiovisual works, screenplays, books, articles and other works of joint authorship.
Or as Dr. Eric Twit of Goggle would say, “Friends don’t let friends innovate with cloudy rights.”
And speaking of the devil’s workshop, I may be the only person on the planet not to have noticed this, but it appears that the Viking Pirate Kings (aka the Pirate Bay) are partners with what the Register calls a “neo-fascist” leader of an extreme right-wing party in Sweden. (I’ve never heard of the financier before, but apparently his political party is a real hot potato in the “fantastically cool freculture country of Sweden” to quote Professor Lessig.)
For those who haven’t followed these things–it is not uncommon for there to be extreme right and extreme left wing parliamentary parties in Europe. Some would call this a triumph of democracy, others might call it an extraordinary waste of time, energy and tax dollars and ponder whether there is a causal connection between wacko politicos being able to get elected and REALLY high income tax rates. Or if reindeer really know how to fly for that matter.
(See this yourself: http://www.youtube.com/watch?v=Eg1S9n81ras)
For those of us who draw parallels between the forced taking and carrying away of property not one’s own and neo-fascists, this connection will come as no surprise, but it does kind of provide some context for the Pirate Party, the political arm of the Pirate Bay and its backers. Unclear what the Pirate Party actually stands for, but it has something to do with destroying the value of other peoples property one would assume. That was something that fascists were pretty good at, so there is enough of an overall connection in the zeitgeist for all these freaks to walk the earth arm in arm. Ah, well, at least they’re not bombing Harrods.
Which reminds me–the Stanford Law School invited the head of the Pirate Bay and the Pirate Party for a little tête-à-tête at Professor Lessig’s unit. I’m sure this neo-fascist issue came up in such intellectually superior company and received a thorough vetting, so perhaps there’s a transcript.
On another note–I see Mr. (nee Professor) Patry’s reasearch staff found my reference to the “Berkman Center for Copyhate” and he actually mentioned that parodic treatment in a panel on fair use at the Fordham Law School. I thought it was really cool that he noticed that the title of his business unit at the Boston school whose name cannot be spoken was itself being parodied here, so making it a perfect sidenote for a panel on fair use.
Since Mr. Patry became a Google employee (i.e., richer than sin), I’m flattered that he takes the time to read anything written by someone who merely toils in the vinyard of what’s left of the creative community as it struggles to stay in the middle class during one of the great income transfers of all time. But then again, Mr. Patry has probably never been on the receiving end of the bilious spew from graduates of the Boston madrassah after they whip themselves into an anti-copyright fervor (thus guaranteeing that anyone with a brain in the creative community would be unlikely to take a chance on anyone with that reference on their resume). While he might not fully appreciate the irony of the “copyhate” reference through direct experience, I’m sure he can appreciate it intellectually, God knows.
And my personal favorite: “What Really is a Fascist?” Now there‘s a question for the ages, eh?
A blog at RecProAudio (The Free Music Model and the Middle Class Artist) and Patrick Ross’s response to same (The Middle Class Artist) raise important ideas that need to be part of the lexicon of every independent artist and their representatives. I suggest you read both those articles and come back to this one, as I’m commenting on certain elements of their work.
Patrick takes the “long tail” assumptions as something of a baseline for comparison of the impact of free music on artists. First, I would note that the famous “Long Tale” scam only works in the music industry based on certain (tacit) historical assumptions which may no longer be true. Given that Chris Anderson spends more time trying to tear down the music industry than study it, this should come as no surprise.
The first tacit assumption in the “wrong tail” is there is a constant level of catalog that will continue to be made available by someone. Second, there is also a tacit assumption that there is a constant level of new widgets in the form of newly recorded artists who are then promoted by these someones at a market clearing level of releasing costs. These someones are usually artists who are very adept at global marketing and have the means and staff to accomplish this on their own (very few), or are the people that Wired Magazine and Professor Lester Lawrence Lessig III get up every day to try to destroy–record companies. Most record companies are teetering on the brink of disaster, so don’t expect either assumption to hold while Anderson & Co wag the wrong tail.
I would add another view on this: The effects of YouTube and Google’s interpretation of the DMCA on artists should Google prevail in court. This is what I call “The Man 2.0″. You find the theme running through all of Google’s activities whether it’s YouTube, Google Book-Print-Library, the company’s litigation strategy both indirect (lawsuit against the Estate of James Joyce, Google-funded lawsuit brought against Viacom by Moveon.org), and direct–training of Google lawyers by Professor Lester Lawrence Lessig III and his writings.
So I would suggest that both Patrick’s x and y axes are too long as both are shrinking daily. The Y axis is shrinking due to piracy, and the X axis is shrinking because there are fewer and fewer artists able to support themselves from music.Think of the economic impact on “music towns” like Austin, Nashville, Atlanta, the Los Angeles-San Diego megalopolis, New York, Seattle, Washington DC, if half the local performing musicians–usually persons in that middle class–just went away. Decided it was too hard, couldn’t get a mortgage, couldn’t raise a family. Got tired of getting parking tickets trying to load in and load out of nightclubs from local police representing the interests of The Man 2.0, got tired of being able to play in nightclubs located in gentrified parts of their towns where they could no longer afford to live. That kind of thing.
Think about the economic impact on all the people who profit from us in no particular order: nightclubs, restaurants, wait staff, car rentals, hotels, musical instrument makers, taxis, gasoline stations, even babysitters. Every time a community loses a performing musician, there are probably another five jobs at risk, and not one of those at-risk gigs is at Limewire, the Stanford Law School or EFF, or even in the tech community for the most part since they don’t want to pay for music anyway.
Another identifier of middle class status is how you are treated by Google. Just in case your most recent interview with your bank manager didn’t convince you that you don’t count, here comes Google to re-enforce that view of its “partners”. For example, Google summarily ignores independent artists trying to get their works off of YouTube.
First of all, the only time I am aware of an artist representative being able to get hold of anyone at YouTube on the phone was someone who tricked out the cell phone number for Zahavah Levine (a lawyer at Google who works on YouTube), and who says she was promptly hung up on. Emails are routinely ignored.
The attraction to YouTube and Google Search is the same attraction that illegal p2p had for users–the majority of people going to p2p already know what they’re looking for. It is a reactive technology. Same thing for YouTube. How many times do people search for “farting in public” compared to “Britney Spears” or “Bob Dylan”? This is why you heard the rumors that YouTube employees were seeding the service with infringing works in the early days so that they’d have something worth stealing. (Although they will deny *that* until the cows come home, as it kind of whatchamacalits that DMCA safe harbor.) On the other end of the spectrum, when the “middle class” artist finds themselves up on YouTube and hears about the hundreds of millions paid in settlement to major record labels, why don’t they get anything? Why doesn’t Zahavah Levine publish her telephone number and seek out fair deals with independent artists whose music is stolen every day on YouTube?
Couple reasons–because they don’t have to, and because they don’t want to. They don’t have to because Google doesn’t do anything it’s not forced to do, and so far it’s not forced to do much. The U.S. government will not protect anyone whose works are being stolen by one of the largest corporations in the world. They don’t have to because independent artists can’t make them–and make no mistake, Google only does the right thing for content owners with a shotgun to their head.
Google doesn’t want to solve the problem because what passes for morality in one of America’s largest corporations is might is right, if you can get away with it, do it, and other forms of moral relativisim taught by the O.J. Simson school of ethics at places such as the Leland Stanford Junior Google School of Law. Or as one great “middle class” artist says, “Americans are freedom loving people, and nothing says freedom like getting away with it.”
But most importantly–Google don’t want to do the right thing because they have no business if they don’t rip off artists, songwriters, producers, and copyright owners–and actors, directors, writers and movie studios are next. Google has what some economists call a predatory business models, or what David Israelite has referred to as a “Corleone business model” or what Rick Carnes calls “notice and shakedown”. I doubt that the Congress intended the DMCA to be an alibi so little Googlers could tell the court that they were home reading the bible when the infringement occured.
And you really know you’re in the middle class when Google steals your work, and then ignores you when you try to do something about it and you can’t afford to sue. Be sure to thank your Congressperson and U.S. Attorney for this little gift that keeps on giving. And think about that $1.65 billion dollars that Google paid to those mall rats when you’re having trouble making your rent.
Google is one of the best practitioners of the Big Lie theory of propaganda–the bigger the lie, the more likely it is that the masses will believe it. So go forth and do no evil, little Googlers.
Musicians have seen this before–they don’t want us to own property, they don’t want to pay us for our work, they don’t want us owning houses, and they don’t want us marrying their sons or daughters. That’s cool–It’s The Man 2.0.
We know all about this. It’s just now Daddy-o sells advertising, and Daddy-o wants to steal everything that ain’t nailed down.