John P. Strohm is a transactional entertainment and intellectual property attorney with the firm Johnston Barton Proctor & Rose LLP. John’s practice focuses on the representation of musicians, songwriters and independent record labels. Prior to becoming an attorney, John was a professional musician and producer for over a decade. He performed and recorded as a member of several notable alternative pop/rock acts, including The Lemonheads and Blake Babies. John is on Twitter @JohnPStrohm.

            In my law practice I represent mostly copyright owners and rights-holders. Accordingly, I am by no means anti-copyright. Nevertheless, I’m also an adjunct professor of copyright law, and the study of copyright has made me critical in many ways of the expansion and extension of copyright protection. If I had to point to a single ill-effect of the expansion of copyright, it is the depletion of the public domain. I believe that an enriched public domain would likely encourage and facilitate further creative expression.

            The Constitutional grant that gives rise to copyright protection in the United States gives congress the power to create laws to “promote the progress of the … useful arts.”  Therefore, in essence, the government’s grant of exclusive rights to the creators of works provides an incentive to encourage creative expression.  In my opinion, if copyright overprotects to the point of stifling further creativity, then it is not serving its intended purpose pursuant to the Constitution. 

            Copyright protection attaches when a work is created, and the current term of copyright protection is the lifetime of the creator plus seventy years.  So under United States copyright law, if a person wants to use for any purpose any creative work that is protected under copyright, then they must “clear” the rights with the copyright owner or rights holder.  For example, if a person who is making a low-budget documentary film finds a piece of music on the Internet that would work perfectly with the film, they must conduct research to find out who administers the rights to both the composition and the recording, and they must obtain a license for both copyrights.

            Copyright clearance can be a difficult, cumbersome and expensive process; it’s especially frustrating when it stands to reason that there are many creators who would be very happy to grant a gratis license for certain uses of their works.  One attempt to provide a mechanism for creators to waive certain exclusive rights of copyright while retaining other rights is the Creative Commons (“CC”), a non-profit organization that provides legal tools to facilitate creators waiving certain rights and protections under copyright in the interest of encouraging creative expression.

            CC offers a variety of forms of licenses that provide a range of allowances, ranging from very restrictive (licensee may use the work for non-commercial purposes, may not create derivative works, [1] and must provide attribution), to what amounts to a complete waiver of all rights (the so-called “CC0” license, which effectively dedicates a work to the public domain). Persons wishing to use copyrighted works may search databases through CC to discover works that are under CC licenses. Below is a brief summary of the types of licenses offered, and a brief description of what sort of situation would apply:

1. Attribution: according to the CC website, this license “lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they give you credit for the original creation.”  This is a very broad grant of rights; licensees can distribute derivative works free of licensing restrictions imposed by the CC license that controls the original work.
2. Attribution and Share Alike: The “share alike” component of the CC licenses ties derivative works to the terms of the CC license with respect to the original work. 
3. Attribution No Derivatives: This license permits others to distribute a work for commercial purposes with credit, but does not permit changes to the work.
4. Attribution Non-Commercial: This license permits derivative works, but any use must be credited and cannot be in a commercial context.  If you are the licensee of the licensed work, be very careful regarding what constitutes a non-commercial work.  Determining what is non-commercial can be a very difficult legal question, and CC does not offer much in the way of guidelines (although CC has promised to issue findings of a study in early 2009).  Unless the use is clearly non-commercial (such as existing solely in an educational context), then either assume there are commercial components to the use or consult a competent intellectual property attorney.
5. Attribution Non-Commercial Share Alike:  Non-commercial derivative works created pursuant to this license are subject to the terms of the CC license with respect to the original work.
6. Attribution Non-Commercial No Derivates: This is the most restrictive of CC licenses; however, this license does permit distribution (one of the exclusive rights of copyright), as long as the creator’s work is properly credited and linked online.  An example of when this license would be appropriate would be if an artist makes an MP3 file available to websites to re-post, so long as the artist is credited.
   

            Bear in mind that CC licensing is different from a conventional copyright licensing transaction.  In a typical license, there are two parties that reach agreement after negotiating the specific terms.  In a CC license, a party attaches a license to a work, and any user is bound by the terms of the license and is potentially liable for the breach of the license.  Since one of the main points of CC licensing is to simplify the clearance process, the licenses must be structured this way; nevertheless, there are potential risks for both licensors and licensees. 

            Under most CC licenses, the licensor gives up a measure of control regarding what the licensee does with his or her work.  Furthermore, the licenses should be regarded as irrevocable, meaning the licensor cannot change her mind about the rights granted.  And because there is no specific licensee in the transaction, there is no way to enforce the 35-year termination of transfer/license provision that is guaranteed to each copyright owner under U.S. law.  This “second bite at the apple” provision is intended to compensate copyright authors whose works become significantly more valuable over the life of the copyright; it should serve as a reminder that it is usually impossible to predict the value of a copyright over the life of the term.  Finally, since the non-exclusive license is irrevocable, it becomes impossible for the licensor to issue an exclusive license of all rights or to transfer the unencumbered copyright.

            Another risk for licensors is that the CC licenses generally require the licensor to waive certain royalties, including so-called waivable compulsory royalty schemes.  There are exceptions to the waiver; however, the waiver often includes public performance royalties that are distributed by performing rights societies such as BMI, ASCAP and SoundExchange.  If you rely on your work for income and you desire to keep your work as marketable and profitable as possible, then CC licensing is probably not for you.

            There are also risks to the licensee of a work subject to a CC license.  For example, there doesn’t appear to be an authentication process regarding submitted works; as such, there is no guarantee that the actual owner or rights-holder has issued the license.  There is no way to find out conclusively if there are other rights-holders who have rights to a work.  Also with respect to non-commercial CC licenses, there is a risk that the licensee will inadvertently use the work for commercial purposes.

            This article contemplates that the work will be subject to United States copyright; however, CC licenses are world-wide.  There may be issues and additional conflicts in other jurisdictions.  Before you grant a CC license for your work or rely on a CC license in distributing a work or creating a derivative work, carefully read the license and consider whether such a grant is prudent under the circumstances.  If you have any doubts, it’s advisable to discuss the grant with a skilled copyright lawyer.  If you cannot afford a copyright lawyer, most major U.S. cities have volunteer lawyers for the arts programs that can provide a pro-bono attorney who is qualified to handle your matter.

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[1] A derivative work is a work based upon one or more preexisting works, including a movie based on a book, a song arrangement, a sound recording of a composition, etc. Typically, a derivative work’s author must acquire a grant of rights from the author of the original work.