When is it legally permissible to sample and reuse content? What’s in the public domain? And what is this Creative Commons thing about?

These questions are perpetually important to anyone in digital media, but there have been a number of resources I’ve come across just in the last few days that may be friendly to those curious about these questions.

Fair Use

Seesmic, the video community, has started a discussion with LA-based entertainment lawyer Michael Donaldson about copyright and the oft-misunderstood Fair Use provisions of US copyright law.

Here’s a teaser video; follow through and the Seesmic community asks questions about what the law means:

Mr. Donaldson has also written up a PDF report on fair use and online video. While it’s video-based, it’s worth a look for musicians, as well.

Via wire to the ear

Public Domain

Public Domain covers works that can be used and distributed freely, without restriction. Lifehacker points (via Ars Technica) to an online tool created by the American Library Association:


Digital Sliderule Makes Copyright Law Dead Simple [Lifehacker.com]

Now, "dead simple" to me would be a wild exaageration — you’ll see that various amendments to US law have allowed all sorts of complex loopholes to keep works out of the public domain. But it does make things more visual — even if it requires that you know whether a copyright has been renewed. Notably, the early history of recorded music is rapidly approaching public domain — that is, assuming labels don’t successfully lobby the US Congress to provide new exceptions.

Those of you outside the US, of course, have different laws, though you are subject to US laws wherever you are, if you’re sampling works that have a copyright in the United States.

Confused by Fair Use (which seems to boil down to nearly nothing) and Public Domain (which seems only to cover really ancient work)? That’s the reason the Creative Commons organization has created their alternative licenses, for artists who want their work to be more freely accessible, or those who want to sample and remix works more freely.

Creative Commons

Before making use of Creative Commons, there is a lot to understand. Later today, we’ll talk a little about the back-and-forth between Creative Commons and writer and publisher organization ASCAP, getting into some of the debate over licenses and the subtleties of the licenses. Wherever you stand and whatever your needs as an artist, it’s good to at least get the pitch and see what you think of it.

Here’s "Wanna Work Together?" from 2006, by CC. It’s part education, part propaganda — but it is a good introduction to the basic idea behind the concept, and what it means.

For some, Share and Share Alike is a political and ethical issue, linked to patent law and free / libre / open source code. Here’s a video (sorry, poorly recorded) from O’Reilly’s Ignite presentations. The challenge of Ignite is you have 5 minutes and 20, self-advancing slides, so if she sounds unusually worked up, the time pressure may have something to do with it! (I’m giving one of these this month — more on that soon.) But it does illustrate some of the ethics and philosophy behind the "Commons" idea. There are people who will disagree with some of these ideas — even including people who make use of Creative Commons licenses. That’s a matter for further discussion, though. At the very least, I think Sarah does a good job of encapsulating her ideas in a short amount of time.

Did they get it right?

Here’s the important question — do these tools and videos get their facts straight? Are there other details they miss? Have you seen better explanations in video? Let us know.

  • Thanks for this! This is very important info for all musicians! A few comments:

    1. Fair use: While there are a number exceptions to copyright law allowing the fair use of what would otherwise be exclusive rights, there is no concrete answer of what constitutes fair use. Rather, the court has a multi factor balancing test to consider, including whether the work is used for commercial purposes, educational purposes, and news/public matters. For copyright fair use, the court will also look at how much of the work is used. The notion that if you only sample 8secs so it must be fair use is wrong. There is no concrete answer of how much time constitutes fair use. But, if the use is considered "de minimis" then you're cool. A few seconds might be considered fair use, unless those 2secs are very recognizable, like the theme from Jaws. For trademark fair use, there is descriptive fair use — if using the mark in describing something is the only way to describe it, you're cool!

    2. Public Domain works: When copyrights expire, the works enter the public domain. But, as mentioned above, they can be renewed. So, be careful if using these — don't automatically assume they're in the PD if they were released before 1927!

    3. Creative Commons: Don't get me wrong, I LOVE creative commons, but it hasn't really worked out to make any money for musicians. A few years ago the notion of a musician's middle class forming via the digital boom was shared by many. I don't think this has really happened as there aren't good ways of making money online for an unsigned/indie artist. So CC may have helped share the music and expose the artist, but little money was made, largely because nobody has thought of a good way to collectively monetize the creative commons music content. Magnatune sorta does, but doesn't take advantage of the power in numbers idea that CC works could benefit from. Sorta like Marlin did for indie labels, CC should do for unsigned artists. BUT, for reference works/resources CC is unbeatable! That's why I've always said CC is good for reference material but not for art.

  • Good points, all.

    Is it really CC's responsibility, though, to be a business model? Isn't it simply the license — simply the tool — and then someone else has to figure out how to make it benefit the artist (whether financially, artistically, or otherwise)? I guess part of the issue is that some of the amped-up propaganda here, not necessarily coming directly form CC but from some of its advocates, suggest a "build it and they will come," magical benefit, but that seems rarely to be the case with anything.

    I suppose the flipside here is that conventional copyright, licensing, and royalties haven't done a whole lot for monetizing lesser-known indie artists, either. So maybe the bottom line is, the real solution is going to have to come from elsewhere — and then it's a matter of whether CC assists that or not.

    I'd certainly agree, though, that CC hasn't yet had widespread benefits. That said, we'll be trying to look at some of the case studies that have worked for people (both with and without CC) to see what might be learned or applied elsewhere.

  • wuntun

    <blockquote cite="though you are subject to US laws wherever you are, if you’re sampling works that have a copyright in the United States">

    …uhh…in what sense is this true? or rather, no you're not…

  • wuntun

    Those of you outside the US, …are subject to US laws wherever you are, if you’re sampling works that have a copyright in the United States

  • Thanks for the write up!

    A great collection of resources for the average musician who's got no idea WTF is going on with their rights and wants to be better informed.