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

Christoph Endell endell at gmx.de
Thu Jul 2 12:53:55 EDT 2009


Hi,

just adding to some thoughts of you guys:

- As Brian wrote, this is really a case of moral rights. So the question is also 
which nationality you are. In Germany, for example, there might be an 
opportunity to prohibit the use of your song for political reasons. The German 
supreme court ruled once that this would violate your moral rights as a musician.

- I once advised a German party regarding CC and they were very cautious 
regarding the "SA"-part. I think if you license your work as share alike, no 
political party will dare using your song because they would have to allow 
others to remix their stuff which is a dangerous game for a political party.

Brian Rowe schrieb:
> 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 
> <mailto: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://hannemyr.no> -
>     http://folk.uio.no/gisle/ ]
>     ========================================================================
>        "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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> 
> 
> 
> -- 
> Brian Rowe
> Juris Doctorate
> Google Public Policy Fellow @ Public Knowledge
> (206) 335-8577 (Cell)
> 
> Public Knowledge
> www.publicknowledge.org <http://www.publicknowledge.org>
> 
> Access To Justice Technology Principles
> www.ATJWeb.org <http://www.ATJWeb.org>
> 
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> 
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-- 
Christoph Roman Endell
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