[cc-community] Are political uses non-commercial?

Brian Rowe brian at freedomforip.org
Thu Jul 2 10:42:14 EDT 2009


The main issue here is a question of Moral Rights in
copyright<http://en.wikipedia.org/wiki/Moral_rights_%28copyright_law%29>.
This is tough to license in the US as the US has almost no recognition of
moral rights and strong exceptions to copyright for political speech.  When
a song is used in a political commercial there are more options Jackson
Brown filed a claim against the McCain
Campaign<http://www.huffingtonpost.com/2008/08/14/jackson-browne-sues-mccai_n_118977.html>last
year for this exact issue.  I am not sure what happened with the case,
although I am skeptical that copyright is the best way to fight political
speech.

If a song is used in a way that offends an artist it often gives the artist
a powerful position to speak out against the candidate.  One solution to
unwanted speech is more more speech instead of censorship.  For more on the
basics of song rights and Palin's
use<http://www.youtube.com/watch?v=nnHxHFG5sv0&eurl=http%3A%2F%2F74.125.155.132%2Fsearch%3Fq%3Dcache%3AjsmbcwXSJmgJ%3Aipandentertainmentlaw.wordpress.com%2F2008%2F10%2F20%2Fcreate-protect-blogcast-barracu&feature=player_embedded>check
out this decent podcast on the topic, it is a little on the legal geek
side and focuses on the right of publicity, public performances, sync
licenses and commercial use.

-Brian Rowe
Law Clerk
Public Knowledge
This message is not legal advice
On Thu, Jul 2, 2009 at 10:20 AM, Gisle Hannemyr <gisle at ifi.uio.no> wrote:

> On 02.07.2009 07:07, Fear Salesman wrote:
> > Hi all,
> > I've just released my first single as an indie artist and will be
> > releasing an album later this year. I'm having a hard time finding an
> > appropriate license, although everything points me toward a CC NC-A
> > license. My main reservation is political uses.
> >
> > During the most recent US presidential election the McCain/Palin
> > campaign used Heart's "Barracuda" after buying a license from ASCAP,
> > even though the band objected. Earlier this year Nicolas Sarkozy used a
> > MGMT song without permission during his campaign. I'd like to find a
> > license that prohibits uses by political campaigns. The CC license does
> > not seem to address this explicitly, so I'm wondering if political uses
> > are considered commercial?
> >
> > Any advice would be appreciated.
>
> CC is running study about non-commercial use that I hope will clarify
> this an related issues: http://creativecommons.org/weblog/entry/9557 ,
> but as of today, there is no definite answer to this question.
>
> In the Norway jurisdiction project, we often get this
> question.  As a means of answering it, we've developed a guide
> that can be used to determine some use cases.  You can find the
> guide here:  http://www.creativecommons.no/ncguide/index.html
>
> If you run the guide, you'll find that it relies heavily on the
> concept of "an allowable NC-user".  A political campaign does
> to fall into any of the categories defined for "an allowable NC-user",
> and therefore this will be considered commercial use
> (at least according to this guide).
>
> I also think that this follows from common sense.  A political
> campaign is really an advertising campaign for some cause or
> candidate, and most people consider advertising commercial use.
>
> However, our guide is not legal advice, and its recommendations
> may or may not not stand up in court.
>
> I know about no relevant case law around the concept of
> "commercial use", and no authorative  legal defintion that
> answers the question "What is commercial use?"  There are of
> course some clear-cut cases.  Selling someting for money is
> commercial use.  Using it for teaching in a non-profit
> educational institution is not.  But there is also a huge
> grey area, and that is where the example you bring up
> belongs.
> --
> - gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
> ========================================================================
>    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
> _______________________________________________
> cc-community mailing list
> cc-community at lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>



-- 
Brian Rowe
Juris Doctorate
Google Public Policy Fellow @ Public Knowledge
(206) 335-8577 (Cell)

Public Knowledge
www.publicknowledge.org

Access To Justice Technology Principles
www.ATJWeb.org

Freedom for IP
www.FreedomforIP.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ibiblio.org/pipermail/cc-community/attachments/20090702/ab367ad9/attachment.html 


More information about the cc-community mailing list