Development of Creative Commons licenses

[Andy Kaplan-Myrth <techlaw AT uottawa.ca>]

I missed the beginning of this conversation so I'm not sure why these 
questions were posed, or if they're just general questions. We may be 
getting off track now, in which case I apologize in advance.

Dana Powers wrote:
> Doesn't this situation (incidental background recording) still require
> synch rights under traditional, commercial licensing systems?  Mad Hot
> Ballroom, for example, was a recent documentary about high school kids
> taking ball room dance lessons in New York City - a cell phone went
> off in one of the scenes with a Rocky theme song ringtone, and (as far
> as I know) synch rights still had to be cleared.

Or, at least, sync rights *were* cleared. It's not certain that they 
*had to be*. It's not necessarily the case that this is syncing -- it's 
just much more safe for the filmmaker to clear rights in advance.

> Really, I think the fact that the movie and music industries call
> pretty much anything that involves reproducing a musical composition
> in a movie a "synch right" makes it really hard to carve out any
> reliable exception scenarios for the ND license.

Are we just trying to get to the limits of what ND will tolerate, or are 
we asking what would happen if a film were released with ND music in a 
scene, and under what circumstances that would be a permitted use under 
the licence?

It seems to me that CC is one response to the industry's expansionist 
understandings of their own rights. I understand that a major label that 
owns the Rocky theme song will likely (and apparently did) construe the 
chance playing of a Rocky-themed ringtone in a film as an adaptation and 
therefore demand a synching licence. But Rocky isn't under CC.

If instead of Rocky the ringtone that played were your song under CC-ND, 
then would you or the CC community think that it was "synced"? If we 
think the majors have gone too far in construing their rights, then we 
should be comfortable with fewer rights, in which case some of these 
scenarios of music appearing in the background of films must be 
allowable for ND music. And if that's the case, then the filmmaker can 
be that much more relieved when the music on somebody's cell phone in a 
scene is licensed under CC, even if it is only ND.

Cheers,
Andy


> dp
>
> On 4/10/07, Andy Kaplan-Myrth <techlaw AT uottawa.ca> wrote:
> > Dana Powers wrote:
> > > I honestly can't think of how you could digitally combine a musical
> > > work with a video without synching.  Even the most basic arrangement,
> > > having both start simultaneously, seems to fit the definition.
> > I think one example would be a film scene with music in the background
> > of the scene. Imagine the scene takes place in a restaurant or bar with
> > CC-ND music playing in the background -- not as soundtrack that's been
> > added to become part of the scene, but music that's just going on in the
> > background of the scene. Or music that's on a car stereo in a car scene.
> > It hasn't been synchronized in a timed relation with the moving image,
> > it's just music going on in the background.
> >
> > This isn't an adaptation of the song. I think the word "collection" is
> > confusing because this doesn't seem like a collection of a song and a
> > moving picture, but we should at least be able to agree that this isn't
> > an adaptation.
> >
> > Cheers,
> > Andy
> >
> >
> > > dp
> > >
> > > On 4/10/07, Thinh Nguyen <thinh AT creativecommons.org> wrote:
> > > > The key distinction is between "Collections" and "Adaptations"--which is
> > > > subject to this "override" sentence: "For the avoidance of doubt, where the
> > > > Work is a musical work, performance or phonogram, the synchronization of the
> > > > Work in timed-relation with a moving image ("synching") will be considered
> > > > an Adaptation for the purpose of this License."
> > > >
> > > > So if there is "synching" of the musical work to video, then the result is
> > > > always an Adaptation, which is not permitted under the ND license. However,
> > > > if the video and music are not synched, but instead meets the definition of
> > > > Collection (the relevant part of the definition being: "is included in its
> > > > entirety in unmodified form along with one or more other contributions, each
> > > > constituting separate and independent works in themselves"), then it is a
> > > > Collection and is permitted by the license.
> > > >
> > > > So it would not be accurate to say that the video can only be blank or
> > > > noise, or that there are no circumstances under which you can combine video
> > > > and an musical work licensed under ND. However, in most circumstances, a
> > > > producer will probably want to introduce some element of synching in a
> > > > movie, so the ND license may not be the best choice if that is what you
> > > > intend the musical work to be used for.
> > > >
> > > > Thinh Nguyen
> > > > Counsel, Science Commons
> > --
> > Andy Kaplan-Myrth LL.B., M.A.
> > Manager, Law & Technology, University of Ottawa
> >
> > ------------------------------------------------
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> > University of Ottawa : Université d'Ottawa
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> >
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> > w: http://www.commonlaw.uottawa.ca/tech
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--
Andy Kaplan-Myrth LL.B., M.A.
Manager, Law & Technology, University of Ottawa

------------------------------------------------
Faculty of Law : Faculté de droit
University of Ottawa : Université d'Ottawa
57 Louis Pasteur Street
Ottawa, ON  K1N 6N5
Canada

t. 613/562-5800 x3206
f. 613/562-5124
e. techlaw AT uottawa.ca
w: http://www.commonlaw.uottawa.ca/tech
------------------------------------------------