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Professional Songwriters and the Creative Commons License

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Rick Carnes, President, Songwriters Guild of America

As President of the Songwriters Guild I am often asked to teach workshops and seminars on professional songwriting.

The first thing I tell my students is that if they want to be professional songwriters they have to 'own' the idea of getting paid for writing a song.

This is crucial because it relates to self respect. If you don't value your work enough to expect to be paid when it is used, then the moment you encounter difficulties in selling your work you will, more often than not, abandon the quest to be paid like a professional, and opt to give it away like a hobbyist.

You can't imagine how hard that concept is to get across to people! Perhaps it is our Puritan background, but all too often in American culture we are taught that art and music are hobbies. Money--and credit cards, home loans and new cars are reserved for 'serious' workers like lawyers, professors, advertising salespeople, or bricklayers .

Often the big turning point in a young songwriter's life is the first time they demand to be paid for a song and they get paid. It is about respect, and respect feels good. That respect validates your choice of songwriting as a profession.

Enter the Creative Commons License...

With the advent of internet music distribution aspiring songwriters are often told that the route to success is to give away their songs and make money in other parts of the music business. No one has really been able to explain how this works in the real world for songwriters who don't tour or sell merchandise, but the story is that you should concentrate on getting 'exposure' for your songs. (They forget that people die of 'exposure'!)

One of the most frequently proposed ways of giving away your song is to license the use of your song under a Creative Commons license. But let us examine the Creative Commons a little more closely...

Lawrence Lessig, the lawyer who suffered a bitter loss at the Supreme Court on behalf of Eric Eldred in arguing that the Sonny Bono Copyright Term Extension Act was unlawful, has made a career out of opposing the scope and length of copyright. Exhibit A--Creative Commons, is the organization he co-founded with...you guessed it, Eric Eldred, after losing in the Supreme Court.

This is certainly their right, but realize that Creative Commons was born out of a defeated attempt to impose upon all creators Lessig's and Eldred's radical ideas about extreme limitations on copyright which were resoundingly rejected 7-2 by the U.S. Supreme Court. So while Lessig denies that he is "anti-copyright", it seems to me that he equivocates on what the definition of copyright is. He's not opposed to copyright, no, no. He just wants the copyright term to be 14 years instead of life plus 70. Sorry--when it's my life that's being added to the 70, I find someone who wants to cut the term of my copyright to 14 years to be advocating such a radical change that I consider him to be against copyright as the world defines it, therefore--anti-copyright.

It is this attempt to snatch victory from the jaws of defeat that spawned the Creative Commons license. The purpose of the license, I think fairly stated, is to promote the unpaid licensing of works of copyright. Fine so far. If a creator wants to give away their work, that is certainly their right.

But now Lessig tells us about the "hybrid economy" in his latest book "Remix". And what might the "hybrid economy" be? "Where commercial entities leverage value from sharing economies." Lessig sites Flickr, as an example to define this "hybrid economy." So doesn't this mean that people who give their copyrights away as part of Lessig's 'hybrid economy'--through "sharing licenses"-- can have their works exploited to profit commercial entities without compensation? Maybe some of those same "commercial entities" that give millions of dollars to Creative Commons Corporation? Is that what is really going on here? After all, When Flickr was sold for 25 million dollars to Yahoo in 2005 how much of that money was shared with the people who 'shared' their content with Flickr?

The way I read the history, Creative Commons wasn't founded by a bunch of songwriters getting together saying what we really need is a better way to give away our rights. It was founded by Lessig following the Supreme Court's rejection of his ideas about limiting copyright for everyone else. Lessig proudly proclaims how he supported funding the Grokster litigation in favor of file share-style looting of music--another argument also unanimously rejected by the Supreme Court.

The point is that when someone takes public stands and engages in litigation against creators to weaken copyright for a good 10 years, and does nothing to strengthen or preserve the rights of professional songwriters, he shouldn't be surprised if songwriters thinks he--and the organizations that gives him a platform--are against them. And when he is closely associated with an organization such as Creative Commons Corporation which is funded in part by Google, another "commercial entity" that spends tens of millions opposing creators (over $100 million on the YouTube case alone), it's a bit disingenuous to complain that a professional songwriter such as me thinks he is "anti-copyright", which I do.

So sure, a songwriter can submit to a Creative Commons license, and sure he or she can retain some of their rights--sure they can. But by participating in Creative Commons I'd suggest that all these ones and zeros are making it easier for Creative Commons Corporation to raise money--millions of dollars--for what? So Lessig can keep his day job teaching, litigating, and advocating to weaken and shorten Copyright? The more that Creative Commons Corporation helps to promote his views, the worse it is for professional songwriters and the weaker copyright becomes.

So, if you want to be a professional songwriter then you need to own what you do and protect what you own. Your work has value beyond being bartered or being used as the uncompensated inventory of the "hybrid economy." But until you believe it no one else is going to believe it. Insist on being paid for the use of your work. If no one will pay you go back and write something better! Keep writing until that glorious day when you get that first check in the mailbox. That is a proud moment indeed.

Music people give away their music voluntarily all the time. We just experienced this generosity in Nashville after the floods. The fact that you want to choose when to be paid for what you create does not mean that you don't want to "share" and it doesn't mean that you are uncharitable.

I don't see how Professor Lessig's litigation history promotes this choice or how a Creative Commons license helps you become a professional songwriter.