If you want to understand the need for a Creative Commons approach to copyright law for musicians, you could do worse than to visit San Francisco. When you get there, take the 1-California Muni bus to the Outer Richmond District, get off at the 22nd Avenue stop, cross the street to the Bazaar Cafe, and ask for Les Wisner.
Wisner founded the place in 1998, and he runs it with his wife. You can order some tea, a beer, a glass of wine, maybe a bowl of rice with seasoned chicken. And just about every night of the week you’re assured a live music performance — local music. Wisner estimates the Bazaar’s community of musicians, mostly singer-songwriters, at about 500 ‑- “unknowns and big knowns,” as he puts it.
There’s no proper stage at the Bazaar, but there is a corner near the front of the place where the evening’s musicians play, and above that spot are five white horizontal pieces of paper secured near the ceiling. They’re worth paying some attention to. They read as follows:
“BMI & ASCAP”
“Want my dough”
“If you play covers”
“Out you go”
While all working musicians today wrestle with the complex issues of copyright in our newly digital world, it’s safe to say that at the Bazaar Cafe those concerns both literally and figuratively hover over them. Ask Wisner about that humorous verse and you’ll learn quite a bit about the stultifying nature of copyright in the United States, none of it funny, except perhaps in a black-comedic, Catch-22 kinda way.
Wisner hung that signage a year or two after opening the Bazaar Cafe, around the turn of the millennium, after receiving countless calls from various performing-rights organizations, notably ASCAP and BMI, trying to get him to recognize their proposed authority to monitor his place of business.
Thing is, from the beginning Wisner had no plans to have anyone perform anything but their own music at Bazaar Cafe — a situation fully outside of the territory of performing-rights organizations. From the start, the cafe was intended as a place that would only showcase original music.
This philosophy has put something of a kink into Bazaar’s music performances. Covers are a standard part of many musicians’ sets, but at this cafe, you just don’t do it — to Wisner, it’s not worth the hassle. Jazz is virtually non-existent at Bazaar, since so much of it is based on repertoire, not to mention the tradition of improvisatory mid-song interpolations of pre-existing music. The concert-promotion collective Classical Revolution has performers at Bazaar on a regular basis, but they either do work from the public domain (Bach, Mozart) or perform their own compositions.
There is, however, one exception to the no-covers rule at Bazaar: members of the cafe’s broad community regularly cover each other’s songs. And that’s exactly the sort of sharing that Creative Commons, albeit on a larger scale, serves to support. Creative Commons is a relatively recent addition to the legal literature of copyright. It’s a fully 21st-century approach, founded in 2001 by a handful of seasoned Internet thinkers, perhaps most famously Lawrence Lessig, author of Free Culture, Remix: Making Art and Commerce Thrive in the Hybrid Economy, and other books on the nature of copyright in our networked, digital age. The “commons” in Creative Commons refers to the public realm, a space of shared resources and collaborative potential.
Creative Commons provides, free of charge, various licenses for artists — not just composers and performers, but also writers, photographers, illustrators, filmmakers and so on. To select a Creative Commons license is to decide on several things, in particular whether you will allow modifications to your work (in the form of a remix, for example) or commercial use of your work (for which you will not be eligible for compensation — more on that in a moment).
Creative Commons surfaced recently as a fiercely debated topic thanks to a fundraising mailer sent out by ASCAP, which named several organizations as trying to “undermine our ‘Copyright’,” Creative Commons among them. This has led to strongly worded back’n’forths between Creative Commons and ASCAP, and their supporters. ASCAP’s attack, to my mind, smacks of fear-mongering, the sort of thing politicians do to rally their base. ASCAP’s pronouncements suggest Creative Commons as some sort of dangerous, out-of-the-mainstream approach, when in fact it is integrated into such web-based sharing services as YouTube, Flickr, and perhaps most pertinent for musicians, Soundcloud.
It’s somewhat ironic, and yet entirely coincidental, that Wisner’s cafe is located a short walk from the home of the Internet Archive, one of the foremost collections of public-domain and Creative Commons works in the world. Same 1-California bus route, just get off at 12th Avenue instead of 22nd– or easier still, visit it at archive.org.
And so, while there are many more, here are 5 reasons musicians should consider a Creative Commons license for their work:
Creative Commons Is Non-Exclusive
Signing up an individual work (or multiple works) to a Creative Commons license doesn’t keep you from working with ASCAP, BMI, or any other performing-rights organization concurrently or in the future. Various ASCAP-associated musicians have applied Creative Commons licenses to some of their works; these include Trent Reznor and Radiohead.
You Choose the License That’s Right for Your Work
You can tailor which Creative Commons license you apply to any and each of your creations. Make one work available for non-commercial remixing, lock a second work into a situation disallowing any unauthorized commercial use or re-working, and place a third work firmly in the public domain.
Creative Commons Is Optional
Assigning a work’s rights using a Creative Commons license doesn’t lock you as a composer or performer into any sort of long-term engagement. Only that specific work is associated with the given license. And even then, adjustments are available as necessary; for example, a work listed as open for “non-commercial” usage (such as letting someone make a video for your song) can be separately negotiated for specific commercial usage (say as backing music in a TV or radio advertisement).
Traditional Performing Rights Organizations Don’t Necessarily Have Your Individual Interest at Heart
There isn’t a one-to-one relation between the amount of money that performing-rights companies collect and the amount that they dole out to composers. Start looking into ASCAP, BMI, or their competitors (their real competitors, not perceived or purported threats like Creative Commons), and you’ll quickly discover stories from artists who’ve had difficulty collecting on their works ‑- as well as stories about how those same organizations have developed potentially antagonistic relationships with the very venues with which you as an artist would want to build positive relationships.
Creative Commons Is Wired for Networked Creation
The traditional performing-rights organization situates itself between various players in the highly codified world of entertainment copyright. That’s a world that has been challenged mightily by all the radical developments that have come in the wake of the Internet. Creative Commons exists to make those relationships as fluid as possible. In other words, consider that group of “500 or so” musicians who constitute the Bazaar Cafe’s community, as Wisner describes it. The Creative Commons is just the same sort of community ‑- one that allows for mutual support and collaborative creation, except that it’s a lot bigger than a single cafe, a single neighborhood, or a single city for that matter. The Creative Commons is global, and it’s growing larger every day.