Towards sensible music licensing for film: Beyond Creative Commons

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What is the value of and best use of Creative Commons in terms of music for film and video? Steve Lawson (AKA @solobasssteve, warning he is one of the most logorrheic Twitter users I follow) tweeted a wish for easier and more explicit marking of Creative Commons licensed music on Bandcamp and Soundcloud particularly for use in video projects. This opened up an interesting vista of musing for me about the role and potential of Creative Commons (CC) and the culture of sharing within creative communities.

Problems with licensing music for film

Perhaps because I am more mired in old-world thinking than Steve, who is something of a social media age renaissance man, I initially saw problems with the premise of a directory of CC music for film/video use,

  • Would this cover both synchronisation and master use?
  • What territories would be covered?
  • What kinds of exhibition?
  • How long would the license last?

I worked, many moons ago, in the field of film sound and music and music licensing was often a fraught issue particularly with licensing existing music for films. There are lots of cumbersome procedures to get through in order to do it in the old-world way.

The synchronisation right allows the film maker to include the music in the film soundtrack, the master license allows them to make copies of the film including the music (like a mechanical license for a CD) and then there’s an exhibition right to screen the film. This mental oxbow is probably not relevant to what Steve was thinking of but the difference is important as it points to the liminal state creative arts licensing is currently in.

The dusty old world

In the old world model a filmmaker would contact the music publisher and negotiate all the rights to use the music they wanted in their film and then would negotiate exhibition rights. These are a nightmare with a stupid number of variables and seem designed to confuse both filmmakers and musicians in order to stymie the whole process.

For low-budget film the standard initial license was for festival/not-for-profit screenings and would include a pre-defined option for further rights to be purchased if a commercial release was secured. This would typically be x-pounds for three TV broadcasts within Europe within five years of the license purchase, and that’s a simple basic example.

There are strong regressive forces here in the culture of film. Festivals require explicit clearance for all material used in a film and film festivals are often technically commercial so aren’t covered by not-for-profit clauses. Film producers are terrified of not having pre-defined options for commercial release. The fear is that a TV company will want to show their film and they will then have to negotiate clearance with rights holders who will have them over a barrel. If you don’t grant them the right to use your music for the broadcast they can’t show the film.

How music licensing for low-budget film could be better

The problem with the old-world model is that it’s based on fear and mistrust. That pours cold water over creativity pretty quickly. It forces creative people to think like lawyers and that seems to lead to worse-case scenario thinking pretty quickly.

A system where musicians could opt-in to an existing standard agreement that would cover both simple not-for-profit (YouTube/Vimeo/etc. release) and low-budget film use would be liberating both for the musicians, filmmakers and our creative culture in general. I don’t think CC as it currently stands but it’s probably the best solution for now.

Filmmakers could get the clearances they need to show their work in promo screenings and festivals and have licensing options in place incase they secure commercial release and musicians get their work in films and have a chance of some income if the film gets a release.

Creative Commons doesn’t quite hit the spot

Creative Commons isn’t a perfect fit for this for two reasons,

In general, low-budget films, and even YouTube/Vimeo videos, are only sort of non-commercial. For low-budget film the hope is, generally, that by giving these films as much exposure as possible they will secure a commercial life of some kind. So while they may start life as non-commercial they may not stay that way.

It is not clear if editing a piece of music to fit a film is making a derivative work under CC licenses. In the normal course of adding music to a soundtrack it may be necessary to truncate it, time-stretch it, extend a section by cut and paste or even pitch-shift it to fit with other elements of the film sound. This could be seen as making a derivate work under CC. Even if there is no alteration of the music the act of syncing it to picture is the creation of a derivative work. Thanks to Jason Sigal for pointing this out in the comments. So you may not use any music under a “no derivative works” licence without securing further permission from the creator.

While it may be a crufty solution I think that a new license that resolves these ambiguities would be a huge boon to the creative community. This could be in the form of a copyright bolt-on like CC or simply an opt-in directory with a license agreement in its terms of service.

There would be huge advantages to building a scheme like this within Creative Commons because it is an existing community and culture.

Culture is more important than mechanism

Ultimately the how is not important. What matters is that a creative culture can be nurtured. It is disappointing, in some ways, to have to think of creating workarounds such as this, but a working solution is better than nothing. Creative work is increasingly moving outside of its old corporate and quasi-corporate mechanisms and schemes that allow individuals without access to media lawyers to participate fully in a collaborative cultural life are important.

The biggest success of Creative Commons, in my view, is not the licensing but the culture. The directories of content allowing free access and in some cases collaborative work to be entered into are an important emerging culture. Whether you are a participant or part of the audience this emerging culture is valuable and we all will benefit from its continued success.

The image above is based on Shunting by John Spooner and is used under a Creative Commons license

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Ruben Kenig

I used to play punk, then jazz. Somehow I went to music school to study composition. I wrote music and made sound design for theatre and studied film music. In the interstitial spaces of this I made websites as a content manager and project manager. I sometimes publish articles at rubken.net.

  • Glad I was able to be part of the inspiration (you'll see I blog about CC licenses this morning too :) )

    I think you're expecting too much from Creative Commons licenses :) You're right that in a lot of those situations they wouldn't work, but then we're just back to having a discussion between artists and film… The old way, that had to happen for *everything*. Now, in cases where there is clearly no commercial transaction taking place, CC covers it. If it's ambiguous, drop the rights holders an email and see what happens.

    The point of the directory was to allow people working within the terms of a CC license to find music that ffits, not to change the way finding music works. I would hope that anyone using my music would email me anyway. They wouldn't legally have to, it would just be a nice, friendly thing to do. And behaving in a friendly way normally sorts out all of these problems.

    Email people, ask permission, be grateful. CC just clears up the grey area around people making slide-shows, home movies and college projects. the borderline stuff between commercial or not still needs discussing. That's not a flaw in CC, it's just life.

  • You are probably right that I am expecting too much from Creative Commons. Dealing with ambiguities is hard for any system, but there is a really rich creative area in that middle-ground between the clearly commercial and clearly non-commercial. CC clearing up the grey area of use for clearly non-commercial use is deeply valuable.

    I think that there are lots of fertile opportunities for use of music in low-budget film. In my experience of that world many filmmakers are intimidated by the licensing process. My dream is that there could be a clear mechanism, like CC, that would work for this world too. The advice available to young filmmakers is, in my experience, anchored in a for-profit mentality. That's overly complicated and based on fear.

    I would like to see a defined middle-space between the clearly non-commercial and commercial. This could be a really fertile space creatively and could fuel collaboration between artists from different media.

    Maybe the lack of this defined space is just life, but 10 years ago there was no Creative Commons and there was lots of grey murk to cope with. Perhaps a few years down the road things will have progressed.

    Thanks for taking the time to comment.

  • Thank you for this excellent post and to Steve for the inspiration. This is definitely a topic that calls for much more discussion.

    I’m writing from the Free Music Archive (http://freemusicarchive.org), where we encounter many artists looking to share their music, as well as filmmakers (and other creative, often non/zero-profit producers) looking for music they can use. Creative Commons is a great facilitator, but it leaves some grey area, especially surrounding music in film.

    I agree with Steve that the best advice is to drop the rights holders a line; even in cases where it’s clearly covered by the CC license, it is the friendly thing to do. But there are such huge legal hurdles when it comes to music in film when doing things the traditional way, it seems like the Creative Commons Defining NonCommercial study (creativecommons.org/defining-noncommercial/Defining_Noncommercial_fullreport.pdf) could do more to clear things up (or be used as the basis to draw some distinctions).

    One important point: whenever music is used in a film or video, that is a derivative work, whether or not it’s truncated/time-stretched etc because “synching the music to images amounts to transforming the music, so you can’t legally use a song under a CC No Derivative Works license in your video” (via https://creativecommons.org/legalmusicforvideos)

  • Norm Loman

    If you can’t use works with the non-commercial or the no-derivatives clause, just use songs licensed as CC-BY. Is there any obstacle to using CC-BY music in a low budget film? Lots of my music falls under CC-BY ( http://soundcloud.com/normal_if ), though I’d doubt any serious filmmaker would have use for my garbage. 

    Interesting idea though about an opt-in directory. Personally, I’d love a single searchable directory of film-safe free music. Or even a search engine that looked up music from multiple directories (or crawled the web looking for links to the CC license next to audio files).