Nina Paley’s Numbers: CC Licensing for Profit

Some of our readers may remember a post about a year ago about a cartoonist named Nina Paley and her copyright difficulties.

A short recap: Nina produced a film based on the Indian tale Ramayana intertwined with Annette Hanshaw’s jazz music. Although the sound recordings Nina used were in the public domain, the copyrights on the underlying musical compositions were not. Nina did not get permission to use the tunes and thus infringed the copyrights. Her settlement with the various rightsholders had a step setup, the more she sold, the more she had to pay to the rightsholders. Deciding that releasing her movie in the traditional way wouldn’t make her any money because most of the money would go to the rightsholders, Nina decided to release her film under a Creative Commons Attribution ShareAlike license.

The Wall Street Journal recently ran an article describing the profits Nina has made in the nine months since releasing her film, Sita Sings the Blues, under CC-BY-SA. The short article lists each source of revenue for Nina’s $55,000 total. It generally appears to be saying that CC licensing can work for smaller, professional artists, like Nina Paley, as well as the big guys that are always talked about, such as Nine Inch Nails.

There are a few more pieces of information, which the article does not cover, that give a better view of how successful CC licensing has been for Nina.

In the presentation on which the WJS is reporting, Nina reports that it cost her $80,000 to make the film, $200,000 if you include her cost of living during this time. Compared to the $55,000 she’s taken in so far, it seems like the CC licensing really isn’t working that well for her. However, when Nina approached independent distributors prior to releasing the film, she was told she would probably make only $10-$25,000, $50,000 absolute tops ‘in her wildest dreams.’ Now, comparing what she has made so far to what the distributors expected her to make total, she is doing pretty well.

A better tally of how she has done would include how the Sita copyright issue and subsequent CC licensing have increased Nina’s income from her other works by increasing her visibility; how much she makes from speaking engagements (which she says are her most lucrative work); and how much more she would have paid out under her settlement agreement had she released the film in a more traditional manner. Since all of these things only add to what she has already made, it’s clear that releasing Sita under a Creative Commons license was a good choice for Nina.

For more information on all the different ways Nina is capitalizing on CC-licensed Sita Sings the Blues, see: http://blog.ninapaley.com/category/sita-sings-the-blues/.

Oh Timbaland!

Dear Mr. Timothy Mosley,
I must say, I am a bit surprised. You’ve been in this game long enough to know better than this. You’ve been a producer nearly 15 years now, you ought to know all about sampling.

It’s not that you’re being sued (again) for copyright infringement – that happens to even the best of them – it’s your comments in response that make me shake my head. Before we take a look at those, I want to let you know that I am aware these comments are from 2007, when the video comparing your song and the Finnish song you allegedly used first appeared on YouTube. I am also aware that a Norwegian court has already dismissed a case about the two songs, which is now on appeal. It’s quite possible the Flordia court will find no substantial similarities or no access for copying – a friend of mine listened and said they didn’t sound alike – but, that still does not excuse your comments from 2007, when this whole mess started. Let’s go over those, shall we.

"That mess is so ridiculous." "I can't really discuss it because it's a legal matter. [And that is where you should have stopped.]

But that's why people don't believe it. [I’m not sure what ‘it’ is, so we’re going to leave this alone.]

It's from a video game, idiot. [Bad move, you just ruined one of your defenses. You admitted to having access to the allegedly infringed work. The person bringing the lawsuit, Glenn Gallefoss, claims the song was done for the Commodore 64. My family has one of those, it’s a computer, used to play video games. However, there is hope. If the video game you are mentioning came out before the allegedly infringed song, you might be able to show that Gallefoss (and the original creator, since Gallefoss remixed, Janne Sunni, actually took the song from a game themselves. ]

"Sample and stole is two different things. [That depends on whether or not you cleared the sample, and judging by the lawsuit, you didn’t.]

Stole is like I walked in your house, watched you make it, stole your protools, went to my house and told Nelly, 'Hey, I got a great song for you.' [Yes, that is stealing too, even without taking the protools with you.]

Sample is like you heard it somewhere, and you just sampled. [If that sample isn’t cleared, it’s still stealing. As you should well know, being a creator yourself, creators automatically get certain rights in their works, the moment the works are created. These rights – we call them copyrights - include the sole right to copy, publicly perform and make derivative works. That’s why there are things called licenses. I assume you’ve heard of licenses, and I’d bet a lot of money you frequently get paid for them from organizations like SoundExchange and (if you write as well as produce) ASCAP. Licenses are how creators arrange to let others do the things only the creators have the right to do. If I create a song and you want to make a derivative work from it, I license you that right for that work and you pay me a licensing fee.]

Maybe you didn't know who it was by because it don't have the credits listed." [This, Mr. Mosley, is called an orphan works problem. There’s been a lot of debate about orphan works lately, including in Congress. Orphan works are works for which the creator is unknown or unable to be found. Basically, the work has no parent, hence the term orphan. Just as it’s very hard to ask a parent you can’t find if his child can come out to play, it’s very hard to ask a creator you can’t find for a license to his work. Unfortunately, it does not also mean you can just use the work.
Part of the reason there are so many orphan works now floating around is the very long term of copyright and the effects of the retroactive Sonny Bono Copyright Extension Term Act. One solution to the orphan works problem would be a shorter copyright term. (Did you know it was originally only 14 years?!) But somehow, as a music producer, I’m guessing you’d be against that.]

This might sound sort of bleak, but don’t give up. There’s plenty of music out there that you can sample all you want without having to worry about lawsuits. First, there’s something called the public domain. This might be a bit hard to sample because you will only be able to use very old sound recordings of even older songs, and that’s only if the sound recording copyright owner didn’t renew their copyright (another mess from extending copyright terms.) Figuring out what’s in the public domain can be almost as much hassle as trying to license something that isn’t.

There’s an even better option. Check out ccMixter. It’s a place where people put music they want others to use and sample. You don’t have to license the music because the creators have already licensed it using Creative Commons licenses. These licenses say specifically what others can do with their work. Just don’t use anything that has an “nc” license it; that means no commercial work, and you, my friend, do commercial work.

As for the law suit, don’t worry. You’re very rich, so I’m sure you have very good attorneys. (Although, that didn’t help P.Diddy.) Just keep your mouth shut.

Sincerely,
goldenrail

Is Creative Commons becoming mainstream?

Most readers of this blog know Creative Commons (CC) licensing well.  However, outside of the blogosphere and the IP field, CC is relatively unknown.  Over the last few months, CC has racked up some victories that are pushing it into mainstream culture very quickly.

Late last year, then President-elect Obama made news in the IP world when he announced that the content on Change.gov would be licensed under the CC-by license.  Even before that, Obama placed many photos from his campaign on Flickr.  They are licensed under the CC-by-nc-sa license, including the famous election night pictures that became an overnight sensation.

Now that Obama has entered the White House, licensing of his content is no longer an issue.  All government works are automatically part of the public domain.  17 U.S.C. § 105.  However, Obama took the extra step of making sure all of the information on the White House site would be free by requiring third party content to be under the CC-by license.

Just a few days ago, we reported that Nina Paley released her award winning movie Sita Sings the Blues under a cc by-sa license.  Just a day or two ago, Gawker Media, owners of the highly popular blogs including Lifehacker, Gizmodo,and Gawker, announced that all of their blogs will be licensed under the CC-by-nc license.  Lastly, this blog is licensed under CC-by-nc-sa (see below).

Creative Commons is making great strides in the world of IP.  With so many people adopting CC for their content, we will soon approach a day where CC licensing is the norm.

Sita Sings the Blues Available under CC License

Ip's What's Up is a little late in reporting this, but we wanted to make sure our readers were aware of it.  Nina Paley has released her award winning film, Sita Sings the Blues online under a cc-by-sa (attribution, share alike) license.  The full film is available for download from a variety of sites listed here.

Nina reached an agreement with the rightholders of the musical works used in the film that allows her to distribute the film.  She has chosen to use a cc license for several reasons, one of which is the ordeal she has gone through with respect to copyright licensing. 

It is important to note that while her film is under a cc-by-sa license, the songs within it are not.  What that basically means is you can watch her film, download it, share it, and remix/reuse any of the animation, but not the songs.  The Sita website provides complete details of all musical works included in the song, their rightholders and any other information people might need in order to secure their licenses.

One little piece of irony: Nina became very frustrated with copyright law during her attempts to get her film available for legal distribution.  In some respects, she's become a bit of an anti-copyright spokesperson.  Yet, in choosing to use Creative Commons' share alike license, she's using the full force of the copyright law to control how others use her work.  They must release any derivatives of her work under the same license she has used.  (For more on this type of use of copyright law, see dtrizzle's post on open source software.)

Nina is still looking for sponsors/donators/producers for the film, to help her pay off the large loans she needed to secure the licenses for the musical works.

[image from CC website]

Are Human Readable Deeds the Solution?

There's been quite the buzz lately over Facebook's Terms of Service blunder.  One of the many responses to the debacle was a post on the Creative Commons blog entitled "The Value of Human Readable Deeds."  The post suggested that if Facebook had included human readable deeds along with their terms of service, the large misunderstanding by its users would not have arisen.

For those of you who are not familiar with Creative Commons licenses, each license includes three sets of deeds: human readable, machine readable, and the typical legalese.  The purpose of this is to ensure that everyone who needs to work with the license understands what it means, including the computer.

Now, don't get me wrong, I like Creative Commons and think their idea for using human readable agreements along with the standard ones is a good idea.  However, I also wonder if this is feasible.  What might it look like for companies such as Facebook to start using these types of multi-part license agreements?

Contract law issues: Obviously, an agreement between a company and its customers/users involves a lot of contract law.  Without trying to get too technical: If a customer reads the human readable part but not the legalese, is there a meeting of the minds, generally required for a contract to be valid? 

There's also a sort of I'm-a-dummy defense that can be used to show a lack of understanding between the parties if one side of the agreement is deemed not sophisticated enough to fully understand the terms to which they were agreeing.  As well as a kind of click-wrap defense that can be used in some situations where a computer user had to accept the terms in order to continue with a program.  What happens to these defenses?

Company Issues: Do the companies really want us to know what's in our terms of service?  In most cases, these terms of service are not in favor of the consumer, in any way.  Generally people accept it as the status quo and move on.  (The difference with the latest Facebook TOS could be that people realize these TOS concern their own content instead of their use of other people's content.)  In this respect, incorporating human readable deeds could be very beneficial to consumers by requiring companies to create terms that are more fair and balanced.  Companies should not be able to put one thing in their human readable deed and something else in their legal deed because that would probably constitute misrepresentation.

Carry-Over: If online and software companies using human readable deeds became the norm, Where else would the use  carry-over?  Rental leases?  Loan agreements?  Service agreements?  Would the general population develop an expectation of signing only agreements which contained a portion they could fully (and easily) understand?

And, of course the big question - What Will Hold up in Court?  (This question also relates back to the original concerns about contract law.)  The legalese of contracts developed over time because of the need for contracts to be very specific.  (Take a look at the difference in size between a human readable and legal code version of a CC-by license.)  The terms used in these contracts have specific meanings, either given to them by the law, or defined in the agreement itself.  Human readable deeds do not incorporate these terms of art.  This creates more room for misunderstandings. 

In general everyday practice, different interpretations of the human readable code will not matter much, but they will be huge when a disagreement involving one of these deeds goes to court.  How will the two versions of the agreement (human readable deed and legal deed) relate to one another?  What if one party says they were relying on something in the human readable section, but something in the legal section makes that interpretation unsound?  Would the human readable code be thrown out as un-important in deciding true legal obligations, or would it over-ride the legal code because it's what the parties truly agreed to?  There are many interesting questions about how this would play out in court, guess we'll just have to wait and see.