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. identicon
    Ray Dowd, 2 Oct 2010 @ 10:25am

    A musician's career usually has an arc. In the beginning, a license for a nominal fee, with credit, is great to get the name out there and to have a credential to build buzz. But over time, the smaller payments become hopefully larger. If the television production submits cue sheets (many don't, particularly cable), the money they already pay to ASCAP will be attributed to the artist.

    I think your post is a little too theoretical. Credit is very very important in the creative arts. Exploiting young or undiscovered talent for next-to-nothing is the tradition: film, music, photography, painting, whatever.

    Television shows already pay blanket licensing fees for music. Not registering copyrights, not filling out the ASCAP/BMI paperwork, and not making sure that you are credited properly is simply poor business behavior, letting a stream of money go to the other artists who do what they are supposed to do and does not in any way implicate the evils of the copyright system.

    In terms of the television production not licensing a sound recording, it makes no sense to argue that they should just borrow what they like. A "fresh" song, a "fresh" photo or a "fresh" vision is what high-end content creators are looking for. They don't want tired/played stuff. So by "exposing" the product, the desperate artist can destroy his/her most desirable market.

    You can't use some kind of Chicago-School social Darwinism theory to argue that the best songs kind of rise to the top on their merits. It's just not how humans work. The right song, played in the right film, with the right director, will "pop". Absent control, the song will be burned and "flop".

    So yes, uncompensated commercial use is really really bad.

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