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Subject: Development of the Creative Commons Sampling license (or license option)

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  • From: Don Joyce <dj AT webbnet.com>
  • To: creative commons license list <cc-sampling AT lists.ibiblio.org>
  • Subject: RE: [cc-sampling] a question about music specifically
  • Date: Sat, 14 Jun 2003 05:20:07 -0700

Thanks Cathy,
You know there is something wrong when it's this confusing to the creators.
So pushing on as if people actually read their licenses, how do we end up wording this?

I believe the license has to reveal the awful truth - that this intention to free up partial reuse in the creation of new work is itself only partial in the case of sampled works that carry this license.

The idea of listing sampled exceptions to the warrenty that exist within on every new work is probably an idea bound to be ignored, and certainly ignored by those like us who don't clear sources in the first place. And I'm not really clear yet on this: If a musician samples from others and clears all those samples, thereby being a totally legal collage according to the law, when someone else then samples from this work, does this mean he has to clear those same samples with those same sources if they happen to be included in his new sample? In other words, does the original clearance on this partial reuse have any bearing at all on the second reuse of that same sample?

If we can't convince everyone of the madness of trying to keep clearance strings attached in a chain of collage, we really have not advanced the cause of collage art. Clearing samples, even in the first instance, is madness because legal clearance mean censorship and prevention to collage, always has and always will. That's what it ends up being used to do in enough cases to shock you. Clearance means, technically, the removal of free expression in the practice of collage. I do wonder if it's possible for this license to assist this, tied as it is to distinctly oppositional laws still in effect.
Excuse my pessimism again.
DJ

















I thought I saw someone already respond on this, but anyway here's my input:

It is correct that because there are two sets of rights involved, the musician will need to control both sets in order to grant the license and comply with the warranty that the use is non-infringing. The sampler needs a mechanical license for use of the song in the sample, and a master use license for use of the sound recording. The compulsory license does not apply when the basic melody or fundamental character of the original song is changed, so this is generally not an option for sampling.

In terms of building this into the license, I agree that this goes to the prior discussion about third party rights. Obviously we can't alter third party rights with the license, so either the artist must contribute only his own work (or works for which he has secured all the necessary rights for all the sampling reuses) or the warranty needs to be modified in some way, such as to permit the artist to disclose exceptions (e.g., "no rights are granted to re-use of XXX musical composition, which must be cleared by the licensee").
I guess another way to address this would be for the artist to carefully define what he is licensing -- e.g., sound recordings only, so he is not granting any license to the musical composition, but a lot of people would probably forget to do this or not understand this, and a lot of licensees would likely be confused and end up with problems.

This is not intended as individual legal advice and does not create any attorney-client relationship. These comments reflect our preliminary judgment that is expressed in a short-hand manner, is subject to revision and is not for reliance by any party.

-----Original Message-----
From: mark / negativland [mailto:markhosler AT charter.net]
Sent: Friday, June 06, 2003 11:33 AM
To: Glenn Otis Brown; cc-sampling AT lists.ibiblio.org
Subject: Re: [cc-sampling] a question about music specifically


At 12:25 PM -0800 5/30/03, Glenn Otis Brown wrote:
Here's one for you musicians and music lawyers on the list . . .

There typically two sets of rights in a given song: the rights to the
musicial composition and the rights to the sound recording. In order to
offer a song under the Creative Commons sampling license, as written,
>would a musician need to own both set these sets of rights? What's the
relationship between the composition rights and the recording rights when
it comes to sampling?

Example:

I record a cover version of "Satisfaction" by the Rolling Stones, and I
try to offer my recording under the CC sampling license, so that the
world will be free to use my version of the song's great intro riff. Is
this possible without the Stones' (or their publishers') permission? If
not, does language to this effect need to be built into the license?


has this been answered yet?? I certainly dont know! And doesn't this
kinda sorta get back to the third party problems discussed before?

mark





Thanks,

Glenn
---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)
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HEY!! LOOKEE!! Please note my new e-mail address that I am writing to
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My old address at attbi.com is no longer being used.
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