Top 10 Things You Should Do/Know When Negotiating a License (Part 2 of 2 instead of Week 6 of Current Issues)

This is not legal advice. Leave audio feedback at (512) 686-6329.

As Tom and I have mentioned several times on the main show, if you release your music under Creative Commons, you can always license your work to someone else under a non-CC license. For example, if you release under BY-SA, you can contract with a film producer for them to use your music without the film producer having the release under BY-SA (which they would have to normally do under the ShareAlike provision, aka SA).

1. If at all possible, get a lawyer.

While not technically a member of the attorney guild just yet, you're right to be skeptical of my intentions here. It is, however, the most important of these suggestions. There are a lot of reasons why getting an attorney is important, but I'll give you two of the most important.

First, if the lawyer screws up, you an sue them for malpractice. If you screw up the contract yourself, sue yourself. Let me know how that goes.

Second, the laws are different in different jurisdictions. Copyright might be federal in the US, but occasionally there are circuit splits. You may very well know the New York contract and copyright interpretations, but if the film maker is in California, it's possible California law might apply.

2. Define everything.

Certain words have specific meanings in copyright and contract law, but if you're negotiating on behalf of yourself, you probably don't know those meanings. If you force the other side to get all of the meanings in the contract, at least you aren't being left in the dark about the meaning.

3. Assume you will be going to court later.

While writing things down can have some positives aside from just having something to hand a judge, if you have no intention of ever suing anyone, there's not much reason to spend time negotiating a contract. Just license your work under the WTFPL or CC0 and save everybody the hassle.

4. Don't act like you know what you are doing.

This mostly applies if the other side as a lawyer. Courts generally do not look kindly upon lawyers taking advantage of lay people. It's true that this presupposes that you're going to be in court later, but see #3. If a lawyer knows you don't know contract law, they will have to explain things to you. This is very important. If you do not understand the contract, there is no contract. A contract is a meeting of the minds and if you don't understand, there is no meeting of the minds. It's true that you would have to prove in court that you didn't understand, but if you didn't, this probably won't be hard. If you acted like you knew what you were doing, there is going to be a ton of evidence against you.

5. Assume the worst.

In most cases, the lawyer on the other side is going to be happy you are doing this. Lawyers are by nature pessimistic creatures. Licenses are all about damage control. If you assume the worst, you'll hammer out all the details while negotiating and you'll avoid court later on. But see #3.

6. Understand that most oral contracts are enforceable.

There are plenty of exceptions, like real estate contracts, but most oral contracts are enforceable. If you agree to something on the phone, don't expect to weasel out of it. That said, proving there was an oral contract is often hard.

7. Write it down.

This might be obvious, but you don't want to get in a he-said, she-said battle in court.

8. Make sure the other party knows you license under CC.

For one thing, if you've licensed under CC, you won't be able to give an exclusive license. Now, you might be able to do some things exclusive. For example, you could contract away the right to further sub-license. Again using the example of the film maker where you've released under BY-SA. You could specify that you would not license another film maker for proprietary use. What you could not do is say that your song will never appear in another film, because BY-SA films would still be allowed.

9. Don't forget about trademarks and trade secrets.

If a film maker is licensing your music, it's unlikely that you'll be potentially revealing any trade secrets. If the film is a documentary though, particularly one where certain individuals are portrayed in a negative light, they may not want you telling anybody about that. While this is really their issue and not your issue, just because the other person doesn't have a case doesn't mean you won't get a threatening letter. Additionally, if you violate their community norms, they may lambaste you which could tarnish your career if it's a popular film maker. If you are coming from a community, like CC, that values sharing, you might not think of this. Just be aware that if you are dealing with a non-CC film maker, they may not feel the same about sharing as you.

10. Ask for help.

Help is available from organizations like Volunteer Lawyers for the Arts. They don't appear to have affiliates in all 50 states, but many states and a few countries have affiliates. If you are in a state that doesn't have a VLA, ask me and I'll see if I can help you find someone.

It's true I probably could have folded this into #1. However, you are always supposed to start and end strong, and I really cannot emphasize how complicated the law is. This is why you should choose CC if you haven't already!

Remember, contract law is different in different parts of the USA and of course in different parts of the world, so see #1!

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Got Questions? (Part 1 of 2 instead of Current Issues Week 6)

This is not legal advice. Leave audio feedback at (512) 686-6329.

For the time being, I'm skipping Week 5. I'll come back to it. Part 2 should be out shortly, but I figured Part 1 and Part 2 were different enough to deserve two posts.

In this post, we'll take care of some housekeeping for my Copyright Licensing course so you have some sense of things you might want me to cover in the future.

This week in my Current Issues in International IP course we are talking about drug patents. I didn't really think I could spin that for the music world (though as always, if there is an outcry for the topic, I can do a post on my personal blog or try to make it music-related), so I thought I would bring you an update on what is going on in my Copyright Licensing course. Unlike all of my courses last semester, and all of my other courses this semester, this is a 2-credit course rather than a 3-credit course. I give you this information so you can compare the depth of material to that of the substantive copyright course information Brian and I brought you last semester.


The Creative Commons licenses are of course copyright licenses, or more specifically, public copyright licenses. Unfortunately, this is not the type of copyright license we have focused on in class. We have focused on negotiations. It's a good skill to have, so I'm not regretting taking the class. It's just unfortunate that I'll need to do an independent study to learn more about public licenses. I've discussed doing that. More on that when it is final.

You aren't here to read about my course selection though, are you? We're about halfway through the semester, but if you have questions you'd like me to answer, here is a list of what we have covered so far and what we will cover in the rest of the course:

Basic Copyright Licensing Principles, including: (a) “Assignments” vs. “Licenses”; (b) Exclusive vs. Non-Exclusive Licenses; (c) Works for Hire & Independent Contractors

The Anatomy of a License: Basic Licensing Provisions & Drafting Language

The Anatomy of a License (Part 2); In-Class Exercise #1 Part 1 (initial discussion)

In-Class Exercise #1 Part 2: Redraft & Review

Getting the Deal Through (Part 1): from Term Sheet to Final Agreement (a “walk through” an actual scenario from initial client meeting to final agreement)

Getting the Deal Through (Part 2): the License (a “walk through” the final license from Week 8)

The Statutory Copyright Licensing Scheme: How it Works (an overview of the compulsory licensing schemes under the US Copyright Act)

Licensing in the Music Industry (review of a typical music licensing arrangement)

In-Class Exercise #2 Part 1: Team-Based Negotiation & Initial Drafting

In-Class Exercise #2 Part 2: Final Draft & Discussion

Final Team Exercise #1

Final Team Exercise #2

So, what have I learned in six weeks of class? Probably more than I can express in words. We have primarily been going over a couple of contracts and discussing them. We have also been practicing our negotiation skills. If anyone wants me to post my sparse verbatim notes from the class, I certainly can. For now though, stay tuned for Part 2, which will be a Top 10 list. People love top 10 lists, right?

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Current Issues: Week 4 - Domain Names

This is not legal advice. Leave audio feedback at (512) 686-6329.

For those of you following along, you'll notice that I skipped Week 3. This is because for Week 3 I started working on an Introduction to Trademarks rather than the science oriented topic that we discussed in Week 3. Considering we are only three weeks into class, I just didn't feel prepared to write the article. It will come out at some point though. Now, on to this week's topic...

This week is a reasonably special week in the current issues course for two reasons:
1. I was one of the two leads for the week.
2. Our guest speaker was a UNH professor (this will happen twice during the semester. Even more to the point, it is the professor that teaches this very class. So, not really a guest speaker. The Seattle prof that teaches the other half of the class has already given her talk.

I think this is going to happen a lot in the class, but as I mentioned in the education talk, these topics are just not in the wheelhouse of many of the students. We spent much of our hour-long Tuesday discussion talking about background issues, rather than the issue at hand, which was ostensibly trademarks in domain names. This is not really a criticism of the class. forming the appropriate prerequisites for the course would be impossible. I just point out that it is incumbent upon students in the class to pick topics for which they are best suited.

Even though in a room of techies my specialty is certainly not going to be high-level Internet routing (perhaps lnxwalt will give his opinion in a follow-up article on Open Source Playground), I think I did a good job picking this topic. For example, I brought up that recently the UN tried to take over the Internet. Considering this is a "current issues" course, I thought it important to do so, rather than get stuck in the trademark morass.

To an extent, the ITU take-over is old news because it just didn't pass, but I think this is an issue likely to come up in the future and thus worth thinking about. Whether you think this is a good idea or not mostly depends on if you trust western governments over a joint east-west partnership. While I don't agree with western governments on everything, I do think they have it right on the Internet. I think ceding more power to Russia and China in the Internet space would be a bad thing. China already seems to do a reasonable job censoring the Internet.

Another reoccurring theme in the course, at least as it relates to the Lawcast, which was not a problem last semester,  is the question of what it has to do with music.

The answer really is that no one really knows because no one really knows how all of these new gTLDs is going to work. However, we can think about some potential issues and advantages for Creative Commons music.

.music TLD

Interestingly, .music apparently already exists (or existed in the past?). However, it appears that if it once existed, maybe it doesn't anymore (or is just for sale)? Anyway, it seems clear that it is up for sale in some sense. CNN lists 8 different bidders for the .music tld. None of them are the Far Further group that rt.com reported is bidding for the tld though. While the rt.com article has a date from this past summer, I can't find one on the CNN list. As anticipated, the page information says the CNN page was last modified when I accessed it. Thanks.

The potential problem for .music is admittedly very tinfoil-haty. If a major label gets .music and it becomes the standard, how will Creative Commons music compete? There are obviously a lot of objections to this critique. What is to say SoundCloud, Jamendo, BandCamp, Free Music Archive and other places where people can now find CC music will move over? What is their incentive to move over? The follow-up question is whether they are competing on equal footing now. How much, if at all, does this change things? Does the fact that they might set apart in some way increase their cool factor?

Equally impossible to answer is the possible benefits CC music could reap from this. Let's imagine that whomever gets .music licenses out the sites at a reasonable price. Let's say Jamendo either moves or has a mirror jamendo.music. The benefit here is that people know they are getting music before even poking around on the Jamendo site. Sites like www.musicmanumit.com and freemusicarchive.org don't really see a benefit because music is in the name.

.creativecommons TLD

There is currently no application for registration of .creativecommons, but what if someone other than the organization we know as CC decided to buy the mark? At 15 char*, I'm not sure there should be much concern for this, but it really highlights the problem at which Professor Wong is getting.

If Creative Commons were bought and used by a traditional copyright licensing organization, where you pay to play, it might change the discourse around CC like the Linux kernel did around GNU. Some individuals still fight for GNU/Linux, but it is a genie long out of the bottle. The term "open source" has a similar problem with people using "open source" to mean freeware, because, obviously, they don't know what "source" is (presumably because they have never seen computer code).

The upside might be more positive here. For one, it's a half-million** dollar publicity stunt if nothing else. I doubt this is the best use of half a million dollars if CC can get their hands on it, but pet projects often get money. Would Mark Cuban have donated half a mil to the EFF without their new Defend Innovation project? So someone with a penchant for the dramatic, not unlike Mark Cuban, would just need to think this was a good way to make a splash.

I'm certainly not arguing that it is the best use of the money, but let's assume for a moment that this happens. One of the problems people currently have is finding Creative Commons music. Obviously you can go to Jamendo or Free Music Archive and find some, but there are also a ton of netlabels out there such as Quote Unquote Records and StoneAge Records that don't participate in those ecosystems.

Even if we do come up with a .creativecommons to make us one big, happy family, where do we draw the line? Free Music Archive isn't just CC, it also has their own license. Even at Music Manumit, we occasionally, play public domain or Art Libre material.

These sorts of decisions about how .music or .creativecommons might work are really outside the realm of law. That does not, however, mean we shouldn't think about them. Either way, it's an exciting world ahead of us!

On Thursday I'll get the opportunity to speak with Professor Wong again about the issue, so if you think there are questions, I should ask her, please let me know!




*Although there are some long ones, like NORTHWESTERNMUTUAL, which comes in at 18 char. I'm just not convinced people really want to type that much in. I guess if all they have to type is .northwesternmutual, then perhaps. It actually potentially saves char in this case. My point is simply that the longer it is, the less likely you are to bump into someone else.

** While the fee is $185k, ICANN also looks at the ability to run a network and the cost needed to prove to ICANN you can do that has been estimated at between $.5 and $1 mil.

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Music Manumit Last.fm group
My Last.fm username: DouglasAWh.
Libre.fm username: douglasawh. 
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