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.