Found the perfect song for your movie?

Copyright law is such that you’ve got to license music before you use it in, basically, ANYthing, even if it’s nonprofit, for a great cause, etc., etc. But that licensing process isn’t in its nature prohibitive. It’s just a matter of getting permission.

If you’ve got talented singers/songwriters among your friends, the whole thing can be very simple. (And, by all means, support them!) Other artists are a bit more complicated, so here are the key things to know going in:

(1) Most important: there are two separate permissions you have to acquire, two “sides”:

• one from the song publisher, for the composition;
• the other from the record label, for the recorded performance.

Usually you have to negotiate the two separately and pay a separate fee to each.

(2) Pricing for both sets of rights is completely up for grabs. (So negotiate hard on what a good cause you represent / how artistically amazing your project is / what a good person you are.)

(3) Each side is likely to ask for “most favored nation” status, which is just an over-dramatic way of saying that you’ll pay, for example, the label no less than you pay the publisher, or vice versa.

(4) Everybody will want to know where and how you’ll display the finished film, including numbers of viewers or copies distributed, whether global or local, whether you’re charging admission, etc. (You need permission regardless, but it’s a negotiation point in your favor if you’re not making wads of money from the film…)

(5) The record label calls the permissions they give you a “master use license.” The publisher calls their permissions a “synchronization license.” There’s no magic to those terms — they’re almost arbitrary — but I guess “sync license” is a little shorter than saying “all the customary permissions I need from the publisher.”

Good luck! While some of the major labels are notoriously hard to reach, small or midsize labels can be surprisingly helpful.

I believe that, as a lawyer, I should end with a few disclaimers:

Get everything in writing. Think through the details — or hire an experienced attorney in the field to think them through. Licensing agreements can get pretty fine-grained, and you don’t want to get into trouble down the road because you inadvertently limited the film to VHS distribution in North Dakota. Make sure your agreement will survive transfer to new copyright owners, like when your songwriter friend sells out to the big record label.

And, of course, you should not treat this post as legal advice. That would take a detailed, confidential review of your specific facts and circumstances. (Sorry, though; I know you already knew that.)

I’ve been a follower of the open source software movement for some years, although as a non-techie I have less claim on the OSS culture than certain friends and colleagues.   Still, it’s a fascinating realm for an intellectual property lawyer / student of organizational behavior.

It’s also produced a range of software that I find myself using often, or even daily.   So I thought I’d take a minute to inventory the open source projects on which I rely.  Turns out to be a long list:

Office Productivity

• OpenOffice.org desktop office suite.
• KeepNote list and note-taking application.
• Feng Office virtual office suite (especially for its contact management / CRM capabilities).
• Firefox web browser.
• Thunderbird email reader.
• PDFsam tool for splitting and reassembling PDF files.  (When you need it, you need it.)
• Whyteboard paint program for annotating PDFs.
• PDFCreator print driver to create PDFs.
• GNUCash double-entry bookkeeping.
  

Music

• MuseScore editor for complex music notation.
• Audacity audio recording and editing program.

Imaging

• Inkscape vector illustration tool.
• Gimp photo editor.
• Debugmode FrameServer video post-production tool which serves individual frames of video from one program to another.  (An oddly useful thing to do, as it turns out.)

Web publishing

• FileZilla FTP client.
• PuTTY.  Nope, I’m not afraid of the command line.  (Yup, I probably should should be.)

Under the hood

• 7-zip file compression utility.
• LAMP web server stack.

The kicker is, of course, that each of these projects was developed using non-traditional economic models.  Some are easy to grasp: a big software company like Sun decides to release their in-house office suite; programmers need base tools (like LAMP) for other work, so they invent clever ways to collaborate and piece those tools together; a guy in his dorm room captures a following among fellow hackers.

But I’d submit that there’s more to even the obvious stories: how these projects gained traction outside the original developer’s head; how they got good enough for daily use; how they turned the organizational corner into a sustained and active development community.

Clever use of copyright law is part of these stories.  OSS lives by combining the rights of copyright ownership with very particular licensing terms: code can be redistributed, but only subject to conditions that keep future developments open source.  So OSS isn’t a donation-based model that only works for techno-hippies.  It’s, instead, a brilliant application of law and economics — just one that’s more complex than “I make software and you buy it from me.”

The result is, at least potentially, spontaneous organization.  And a lot of great software.

There’s lots of interesting fodder for conversation around copyright law, its use, and its potential reform.  Before weighing in properly, I’d like to simply collect links for some of the best discussions I’ve read.

Most interesting to me is the way writers and artists are weighing in.  It’ll be interesting to see how their comments filter, via a tangled web of lobbyists, through to Congress.

But on to the links:

Jason Robert Brown, the Broadway composer, posts a fascinating exchange with a teenage sheet music sharer, under the title “Fighting With Teenagers: A Copyright Story.”  I like the post — and the comments, of course — because Mr. Brown ends up focusing more on ethics, less on economics or existing law.  (Which is a good way to start any conversation on what the law ought to be.)

David Pogue, for the NY Times, responds to Mr. Brown in “No Easy Answers in the Copyright Debate,” legitimizing this as a debate with two sides.  In some cases, Pogue argues, copyright law raises barriers to just the kinds of artistic endeavor that it’s supposed to encourage.

And Tony Woodlief weighs in with essentially the same point in today’s WSJ, under the title “Curse of the Greedy Copyright Holders.”  I like Woodlief’s article for the way he writes, the way he’s chewing on the issues, and the perspective.  He writes more as a writer and less as a commentator, if that distinction makes sense.

More to come.  Meantime, I’m thinking about the way this conversation separates into ethics, law, and economics.  Although, eventually, they do need to weave together in some sensible way.

Recently heard Joe Berlinger interviewed about his documentary Crude, which depicts a long-fought legal battle over oil drilling in Ecuador.  So I was interested to read the latest twist in the story: Chevron, the defendant in the Ecuadorian case, sent Berlinger a subpoena demanding that he turn over his 600 hours of raw footage.

The case is in Ecuadorian courts, but US evidence rules allow foreign litigants to subpoena relevant documents through the US courts.  See 28 U.S.C. § 1782.

So, in a May 6 opinion, the US District Court approved Chevron’s application for this subpoena.

It’s an interesting read.  The NY Times article (linked above) plays up a broader debate about journalistic privilege.  Judge Kaplan, on the other hand, focuses on a technical issue: “the standard release that [Berlinger's] subjects signed, however, expressly disclaims any expectation of confidentiality.”  (Opinion at page 22.)  Where the parties don’t expect confidentiality, he thinks, it doesn’t make any sense to talk about journalistic privilege.

I’ll leave it to others to discuss the big issues at stake in the case and in the documentary — and those are the important discussions to have.  But as I think about the mechanics of production, I do wonder whether legal documents can better serve intricate, real-world arrangements.

Many film subjects — as Berlinger’s lawyers tried to argue — give the filmmaker unique access based on trust that he’ll use the raw footage carefully.  On the other hand, filmmakers can’t expect everyone to sign off on their appearance in the edited film — that’d be a nightmare exercise in creating by committee.  So, before the cameras roll, and before the production assistants whip out release forms for signature, subjects and documentarians come to an understanding along these lines:

Any footage of me is confidential.  But I grant the filmmaker, in his sole and unlimited discretion, the right to select portions of the footage and juxtapose them with other components of the film, and to present the results to the public.

I’ve never seen that in a release.  (And I’d need to flesh this language out further before proposing it for use — which is sort of the problem.  Good legal documents are hard, and producers need to move fast.  Something to chew on…)

Meantime, what do you think about this opinion?  Shouldn’t we follow what people write in their documents?  Or is this just a cheap trick on a technicality?

Open source licensing is important — and often overlooked, to the detriment of the community.  In many cases, license provisions are easy to follow, but here’s a puzzle:

This blog runs (1) on WordPress, using (2) Joshua Sowin’s implementation of (3) the Blueprint CSS framework.  Each of these three credits represents an excellent piece of work, but each uses a different open source license: WordPress uses the GPL; Sowin uses Creative Commons; and Blueprint uses a modified MIT license.

Sowin is right to apply his choice of license to his work as derived from Blueprint — the generous terms of the MIT license allow him to do that.

But his work is also derived from WordPress itself, at least arguably: here’s a post arguing that any theme used on WordPress has to be licensed under the GPL, subject to the GPL’s particular permissions and restrictions.  The comments are as interesting as the post itself — exemplary of the confusion that can come into a puzzle like this, and of the stakes involved.

What’s a licensing developer to do?  WordPress provides an answer in a posted legal opinion from the Software Freedom Law Center, but it’s complicated: PHP files have to be GPL’d; other elements don’t.

Not a very clean answer, and one that warrants further discussion here.  Watch for updates as I flesh out this draft discussion.

Meantime, as the grateful user of Sowin’s work, my job is easier to parse  (I don’t think you have to be a lawyer to figure this out): give credit where credit is due.  That’s why, of course, you see each 0f the above three credits in this site’s footer.