Is Uncompensated Commercial Use Of An Artist's Content Really That Bad?

from the free-promotion dept

We've discussed a few times how the whole distinction between "commercial use" and "non-commercial use" can be somewhat arbitrary. Even though many Creative Commons supporters insist that a "non-commercial" license is the way to go, there are some good arguments as to why such a limitation isn't a good idea either.

Long-time Techdirt reader SteelWolf sent in a blog post he recently did on the subject, where he makes the argument that uncompensated commercial use of an artist's work isn't something to worry about. The idea that some company will come along and "profit" from your work without giving you a cent is misguided, because there are all sorts of opportunities for you to take advantage of such a use directly yourself:
A budding musical artist writes and records a song, putting it into the Public Domain/copyleft on his website for his fans to share and enjoy how they wish. Somebody from a major television network finds the song and use it in a new show without even giving credit. The show goes on to become a hit, making the network millions while the musician remains poor. How should he respond?

First of all one has to understand that it is highly unlikely that the show was successful solely because of the inclusion of the song. Commercial success does not suddenly mean money is owed. While it may have been nice to get free money (royalties and the like) from repeated airings of the show, it is not that but the lack of proper attribution that is the real cause for frustration.

Assuming the network will never deign to correct its mistake, I think one of the most important things to do is use the internet connect the song and show back to the artist. If the song really brought that many people to the show, they are likely to start searching for it online. Something like a post on the artist's website will show up clearly in search results, and it gives the artist an opportunity to direct new visitors to free downloads of the song, concert dates, and his other reasons to buy (perhaps tweaked to appeal to fans of the show). It's also a good idea to have a way for people to send donations.

Granted, these things aren't going to make you rich, but then neither are royalties. What it does do is save the artist tons of money in legal costs trying to fight the network, and help build his name as somebody who creates quality music and expand his fanbase -- all despite the network's "oversight" in crediting the person behind the work.
On top of that, we've seen over and over again, that when a company makes use of someone else's work for such uses without properly crediting the artist, it usually doesn't take much for that word to spread, and get more attention drawn to the artist. The artist can put up a blog post, noting that the TV show didn't credit him or her, and that even helps the story spread as well. It's yet another case where social mores work better than not just copyright, but non-commercial Creative Commons license as well.

And, with that, we'll leave the last word to Nina Paley:

Filed Under: commercial use, noncommercial use

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  1. icon
    Karl (profile), 4 Oct 2010 @ 10:18am

    Re: Re: Re: Re: Re: Re: While we're saying "it's not so bad..."

    Did I mentioned companies? I apologize my concern is not companies but individuals and small starups the people on the fringe not stabilished players, that get resources cut out from them with such rules.

    If we're not talking about companies, then we shouldn't be talking about "commercial use," but all use. I, too, disapprove of copyright law when it's used to attack the public (as is the case with the RIAA suing file sharers). Even if it was a good business move somehow, it would still be trampling on the public's rights. But business entities aren't members of the public, and don't have those rights.

    That's why I suggested that an entity needs to be registered as a business, or actually selling the content, for the use to be considered commercial. Individuals would be exempt.

    Whether the company is a startup or an established player doesn't really matter to me, just as a startup company couldn't ignore minimum wage laws.

    Now explain the labor thing, because I don't think I understand what you want to say.

    The value of your labor is not in how hard you work, it's in how much monetary value your labor brings to the market.

    You understood the salesman analogy? He is still earning a commission on income from his clients, even though it is much harder to land a new client than it is to be a rep for an existing client. It's not how hard he works, it's how much money his work is bringing in.

    Think of a song as being a salesman. The song, like the salesman, is continuously bringing income into the company. So, the company owes it a commission. The flip side is if that song isn't generating sales, then you don't owe it any commission at all - as is the case with non-commercial use.

    A financial transaction will be made with and agreement between two parties not through compulsory regulation.

    If companies are allowed to use works without compensation or permission, then there is no "agreement" to be made. You effectively remove the artist from that market.

    You are talking about permission, I am talking about freedoms, you start limiting something and it will get expanded

    Minimum wage laws are also a limitation on a business's freedom. Have those laws expanded? Would that expansion be bad thing for society in general?

    Or when they are covering someone else songs.

    That would mean that you don't think songwriting is labor, or that this labor doesn't add value to a song. If that's the case, then you should do your own labor, and write your own song.

    Also, people should only have to pay if that cover song is used for commercial use, and only paid for by the commercial entity that generates income from that use.

    Does sirius force people ot hear them? [...] Paying a fee it is not a problem when it is a choice, when it is mandatory then we got a problem.

    Are you forced to eat at McDonald's? No. That doesn't mean McDonald's employees shouldn't be paid. And paying McDonald's employees for their work is not a choice, it's mandatory.

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