When someone wants to license your art, characters, photos, articles or music, how does it shake out? Chances are that these negotiations involve expensive lawyers on both sides of the deal.
If you're running an enlightened company, you might have a Creative Commons license hanging out there for non-commercial, "fannish" uses. (Creative Commons publishes a suite of widely adopted licenses that allow rightsholders to release their work for sharing, remixing, etc.)
But somewhere between Creative Commons and full-blown, lawyerly license negotiation is a rich, untapped source of income for creative people and firms with portfolios of iconic material. To cash in, you just need the courage to let go of a little control.
Actually, a copyright challenge would fail here, on grounds that a computer does not qualify as an author. The definition of an author was established as far back as 1885, when the US Supreme Court had to determine who the author of a photograph was.
To be an author, one must demonstrate a minimal level of creative input regarding the work in question. A computer, being a machine without sentience, does not create...it is programmed to carry out a task. The program, not its output, becomes the creative content which is copyrightable. The program itself cannot be an author.
Otherwise, one could claim that the programmers of Photoshop own joint copyright in all works created by users of the program.
If you want to get your stuff copyright protected, you need a lawyer to help you dot your I's and cross your T's. If you just walk into a law office your going to get slammed on price if you're not carefull. Or you can use what I use www.prepaidlegal.com/hub/carden_mf and pay a lot less. Yes I know its a shameless plug for my business, but it works well and will help you out in the long run.
Did I get you right in simple terms: "Mutual respect yields results"? Where todays copyright industry standard is based on protection and suspicion, you'd like to open up the creative potential with respect. I am all for it. Here's why in zero sum:
The thirty IBM super computers calculate all the potential non recorded sheet music (can be done with ease) and copyright them globally. Anybody who from that point on would like to compose or perform any new stuff would have to pay them. This is not sustainable - nor in the interest of any single company, but it goes on to show that nowdays we have reached limits that we thought earlier to be infinite. This puts the whole copyright system infront of a major challenge. Is there a way to define where and how creativity actually originates and are the capital means the only way to gain rights in our day and age?
In the instance you illustrate, I completely agree. I think at the time I was considering, some poor slob, getting duped into a "creative commons" agreement, winding up hitting the proverbial jackpot, and have a legal team from say Random House, come in and tear this piece of paper to shreads.
I guess we all carry disdain for lawyers in one way or another.
Do you know how to save a drowning lawyer?--- Take your foot off his head.
I believe your position is valid for people who want to make sure that all of their bases are covered should they decide to sue for copyright infringement in the future. But if this scenario is played out in a courtroom with a bunch of lawyers trying to sue me for using an image that you owned but made available to anyone under a "creative Commons license" specifically using the wording that Cory posted, on your website to grant me that permission, I don't foresee you and your lawyers being successful. Granted, I'm talking about common sense, and a lot of times the law and common sense are at odds. But in this instance you are the one who initiated the contract. And the onus of proof of breach would be on your shoulders.
I also fully agree that this whole situation seems to be a means to avoid involving lawyers (read: paying a lawyer) in commerce. And lawyers, in the view of Thomas Jefferson, "are all scoundrels and should have their hands bound up by the Constitution", should have already been involved in trying to squash this. But, for some reason they have not. To me this implies that Cory's assertion is correct.
You must believe that I tried very hard to resist this, but I just couldn't make myself do it. So, here goes:
Why don't lawyer jokes work? Because, lawyers don't think they're funny, and the rest of us don't think they're jokes. It couldn't have been worse, I have 1 million of them.
we are just giving lawyers more maps to learn, lessig is a lawyer, so lets not forget they can be innovative. in this age of the mind that is painting the invisible digitally online, lawyers are going to have to pool, to confirm info. in todays world, commision is everything, you make a mash up, the divying up process shouldn't be to hard to designate.
This is a great idea Cory, really nice and simple.
What happens though, if your work is a mashup of multiple things? If I use a bit of your book, three people's songs, and a couple of bits of video, do I end up owing 150% of my gross to all those licensors?
It makes sense to me that if I derive from more than one work, that I should have to pay less in license fees to each licensor. I'm probably using less of each work, for starters. There's no simple way to manage this that is immediately obvious to me, but I think it does need to be addressed. You need the derivative creator to still be rewarded, as well as all the owners of derived works, in some proportional way.
I agree that no lawyering up is necessary, particularly if Creative Commons or another entity comes out with simple (think t-shirt sizes) terms for DIY Digital Licensing.
This is where FairShare - the service that was launched in collaboration with Creative Commons in March - is headed (disclosure, I work on FairShare). We don't have a great solution for commerce, but are already testing sharing ad revenue to allows folks to free their work and let the Internet do its job.
Very interested in others thoughts on how this could expand to commerce as we don't have a solid plan here yet.
Those who make derivative works can find all kinds of new opportunities for the original creator. It seems like this would work for giant media conglomerates as well as smaller producers. Nobody could afford to try every potential derivative product and see what works--why not benefit from reduced risk and greater division of labor by letting others try?
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