Legal innovation breeds artistic ecosystem

Legal innovation breeds artistic ecosystem

Summary: What do you get when you cross: a good musician,  Creative Commons, accessible authoring, creation, and hosting tools, and engaged listeners?   The Jonathan Coulton Project.

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TOPICS: Legal
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What do you get when you cross:

The Jonathan Coulton ProjectJonathan Coulton headlined the Creative Commons concert in Second Life I mentioned here last week, and, with the help of Creative Commons, encourages people to download and make videos of his music.  Not being a member of Second Life (yet?  dunno, my first life already gobbles more time than I actually have on hand), much as it intrigued me I didn't attend the concert, and until today had never heard any of Coulton's excellent music.  But, as concrete proof that a musician's audience grows by partnering with enthusiastic fans, and that it can and will transcend community boundaries (like, for example, the community of Creative Commons music aficionados, and/or Second Life devotees), I received an email this morning on an unrelated topic — education — from Ruth Logie.  Ruth stumbled on a post of mine "by sheer coincidence" and was kind enough to respond.  She happens to be a Jonathan Coulton fan and video project participant.  Almost as an afterthought, Ruth linked me to her Jonathan Coulton mashup on YouTube (which is both delightful and a potential legal problem due to its incorporation of Second Life material; though who knows, maybe Second Life will follow the lead of Warner Music*).  Thus did I finally actually listen to Coulton's music, and discover the participatory ecosystem it is fostering.  Check out Coulton's Flickr song and video, which he cites as the kind of work envisioned by the video project.  Coulton's description illustrates the way a series of Creative Commons works (selected Flickr photos) begot another (Coulton's song), which begot yet another (Coulton's video):

This is a song written for a video created for a song. All the images come from Flickr, an online database of photos uploaded by anyone - the ones I used have a Creative Commons license which allows anyone to re-use them in a new non-commercial work as long as they are credited, and as long as the new work is released under the same license.

So, to recap:  Ruth happens on me and my post, answers a parenthetical question there, introduces me to Jonathan Coulton, I pass it along here...where next?  We have an excellent comment feature if you'd like to continue the story.

There's another interesting legal issue lurking here.  For example, Second Life imagery is proprietary and a potential copyright problem, as Flickr recognizes.  But Second Life is not just a game, it's a gathering and interaction space, home variously to Second Life-only events like the concert Coulton headlined, virtual mirrors of real world events, and other occurrences in-world that have news value out here — business transactions, celebrity sightings, you name it.  What sort of journalistic protections might be extended to those who cover events in virtual worlds remains to be seen, but legal accommodation of this practice seems necessary and warranted.

[Updated September 21, 2006 @ 10:30 pm]  Related links:  feeds for Thing a Week and the Jonathan Coulton Project videocast; Coulton's YouTube channel; buy tracks; buy cds; buy in iTunes.

*[Updated September 22, 2006 @ 12:12 am]  Ruth kindly set me straight as to the origins of the visual portion of her video, and we're discussing that further in the comments.  [Updated September 23, 2006 @ 2:26 am]  There's a really fascinating question here, on which I'll do a separate post, relating to copyrights in machinima works created with The Movies.  For now, please see these two comment threads.

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Message has been deleted.

    opensourcepro
  • Cool

    Faith Hill has a concert on DVD (When the Lights God Down). I basically like the DVD, but I would rather have the opportunity to edit out a lot of the talking that?s in it, and redo the chapters so that I can bounce from one song to the next, and simply watch her perform. The Creative Commons would allow me to do this ? particularly without the copy protection on the DVD (which is inconsequential to pirates anyway).
    What would Faith Hill get from this? I?d watch her recorded concert more often, and I?d be inclined to buy more of her material.

    I personally like the idea of artists owning the copyrights of their works, and licensing them under a creative commons license similar to the one used by Jonathan Coulton. This would allow artists to establish ecosystems around themselves, and allow them to dynamically monetize their work as best as they can ? while keeping their fans happy. I believe artists who use the Creative Commons license will wind up significantly expanding their fan base, while also having extremely loyal fans. Why? Because their fans would be a lot happier over the freedom to be able to use and manipulate their works privately. Also if fans can distribute their works in mixed music and a variety of multimedia formats freely, they will essential be expand the artists? ecosystems, and overall provide increased opportunities for the artists to sell their works.

    An artist?s ecosystem could include music, video, merchandizing, etc. Much of his multimedia could be free, ad embedded, or for fee. He could also make a lot of money from various forms of merchandising. He could rely on Internet services to cheaply produce, distribute, and promote this work. In particular, he could use viral systems like YouTube to promote and distribute his works. The artist could also freely associate with various services that allow him to hold concerts, do special, more expensive promotions, etc. All of this could drive down cost making digital media of higher quality and lower cost.

    I really don?t see the Internet as a threat to IP. I see it as a large boon.
    P. Douglas
  • Clarification

    Hi there, it's Ruth here. Just to clear up any misunderstanding: my video, the one I linked Denise to, does not contain Second Life material. It's non-commercial, and it uses music licensed under Creative Commons directly from Jonathan Coulton, available for download on his website www.jonathancoulton.com. But I take Denise's point about the legal conundrums that virtual worlds are going to present. And another thing I'd like to know more about: the position of amateur artists who use commercial software tools to publish content on the web: as, for instance, I used The Movies game to make my video. Any comment Denise?
    Hippobabe
    • Oops!

      So sorry! That's what I incorrectly assumed the animation was from (the clips I've seen from Second Life look like that), will correct the post.

      So, the animation was from a different RPG, The Movies, right? Can you explain a little more about how that works? I presume the terms and conditions of the game discuss what rights you have concerning the movies you create there, and just how you're authorized to "Post your movies to the web for all to see" (that quote is from the game's"About" page).
      Denise Howell
      • The Movies

        The Movies from Lionhead studios: is it a game? Is it content authoring software? To me, it is the latter, especially now that I am combining video files from different sources into an end product, a mini-movie. The Terms and Conditions of The Movies - http://www.lionhead.com/terms.html see Section 10 - are not very helpful. They cover only movies that are uploaded to or downloaded from The Movies Online website. Hybrid movies (made with different tools and techniques) cannot be uploaded to TMO. Even pure-blood Movies movies don't have to be uploaded. So where does that leave me? Confused, that's where.
        Hippobabe
        • Read the game license...

          One could possibly read the shrink/click-wrap contract(EULA) that is included with the game to see if it grants you license to use the content within the game for derivative works and if so under which terms.

          That should clear up any confusion... or not.
          Edward Meyers
        • Clickable Culture has an article

          Clickable culture has an article on this issue:

          http://www.secretlair.com/index.php?/clickableculture/entry/the_moviesuser_created_content/
          Edward Meyers
  • The Movies EULA

    The Movies EULA says, "However, with respect to any game movies you create using the in-Program movie making feature ("Game Movies"), you will retain ownership of your Game Movies, excluding any and all content within your Game Movies that was either supplied with the Program or otherwise made available to you by Activision or its licensors, and such content shall remain the exclusive property of Activision and its licensors subject only to the limited license granted herein." That seems reasonable and fair.
    Hippobabe
    • Does it really seem fair?

      Uhmm... you do realize it doesn't look like they have given you a license to make derivatives or distribute their content.

      The catch is this.

      [i]excluding any and all content within your Game Movies that was either supplied with the Program or otherwise made available to you by Activision or its licensors, and such content shall remain the exclusive property of Activision and its licensors[/i]

      They supplied character models, set graphics, other artwork, etc etc... it would be near impossible to create a work using just the game which didn't incorporate content that was supplied with the game.

      What you want to see there is a royalty-free license to create and distribute derivatives from the supplied content... that isn't there.

      It appears as if anything except 100% original content that you produced and imported into the game belongs to them!!

      The TOS is much more clear on this point and if you upload your content gives them significant rights to your original content;

      [i]C. Grant Of Licence -

      (i) You represent that you are the author of all movies that you create using the Movies game. Notwithstanding anything to the contrary, you agree that LSL owns all content within your movies that was supplied with the Movies game or is otherwise made available to you by LSL. You remain the owner (or are a permitted user) of all Additional Content that you add to your movies.

      (ii) You grant to LSL and their licensees, distributors, publishers, agents or assigns a world wide non-exclusive perpetual irrevocable royalty-free licence to publish, use, change, modify, sub-license and/or otherwise exploit as it deems fit, your movies, including, without limitation any and all Additional Content that you add to your movies in all media and formats (electronic or otherwise, including without limitation via the internet) including the right to publicly broadcast the same and you acknowledge that no payment is due to you nor shall any payment become due to you from LSL (or their licensees, distributors, publishers, agents or assigns) in respect of any use or exploitation pursuant to the aforesaid licence or any of the other rights granted herein (including without limitation lending and rental rights). [/i]

      In other words the plain language version;

      [b]All your base are belong to us[/b]
      Edward Meyers
      • Stupid Faustian analogy

        I know this is probably a Jesuitical argument, but movie content is more than the models & artwork, isn't it? The story is original. The application of the tools is original. Like, Microsoft doesn't own my last novel because I wrote it in MS Word, does it? Have I signed away the rights to my soul or what?
        Hippobabe
        • Faustian indeed...

          You still can't get around that your work, unless it was not created within the game itself, is derived and the licenses for the game in question does not grant you those rights.

          The EFF runs a good FAQ on derived works here;

          http://www.chillingeffects.org/derivative/

          If you use Word to write your book the parts that you write yourself contain no Microsoft content. Microsoft even grants you a royalty-free license to use and distribute their included clip-art that you may include in your works.

          In short it is not the same thing.

          There may be a Fair Use argument there but read the [url=http://www.chillingeffects.org/derivative/question.cgi?QuestionID=118]FAQ [/url]there also.

          You also can't get around the TOS agreement that grants LionHead the perpetual irrevocable royalty-free license to do whatever they wish with your work if you upload there.

          Assuming that such contract terms are not found unenforceable then assume they are binding.

          While the intention of the game developers may have been to create a game to allow such derived works the contract terms get in the way. I'm cynical enough to believe that the executive management would not allow such uncontrolled derived works anyhow and the license purposely doesn't grant you those rights, thus reflecting the executive managements desire not to allow derived works not under their control especially since this is not a new issue.

          With that said there are many CC and Open Source games out there where the license does grant you license to create derived works and there are video upload sites which don't force you to sign away your rights.
          Edward Meyers
    • Movie makers own something, but likely not enough

      Ruth, I really appreciate your bringing this to my attention, it's a fascinating issue. I hadn't heard of The Movies before now, so the machinima I was heretofore familiar with was the kind Wired News described in a Jan. '06 article about The Movies (http://www.wired.com/news/technology/0,70058-0.html):

      "Until now, most machinima have been made by geeks who know enough about coding to re-purpose video-game engines like the open source Quake III engine to make their movies. Or they had to know their favorite MMORPG or first-person shooter well enough, and be patient enough, to manipulate, pose and film their in-game characters performing scenes."

      I didn't realize someone had come out with a commercial set of software tools/"game" a primary purpose of which is to allow users to create machinima. Smart. Though the non-virtual analogy has an easy legal answer -- the filmmaker who buys filmmaking tools, or the writer who buys writing tools, owns his or her creations -- the virtual one does not.

      Lionhead may not have intended to but has in fact complicated matters with its EULA and with the t&c attached to movies.lionhead.com. These documents evince either an intention to specify that filmmakers using The Movies "retain ownership" and "remain the owner[s]" of at least *some* portion of the works they create using The Movies, or the EULA and t&c are simply misleading (whether intentionally or merely clumsily so). Edward is correct that the operative question is whether it's possible to create an utterly original work using this tool, and though I'm not intimately familiar with it I believe the answer is "no;" in fact, even if it were possible, doing so would thwart the very purpose of the tool, i.e. the ability to manipulate certain Lionhead-proprietary raw material into creative works. Whether those works can be *wholly* owned by someone other than Lionhead seems impossible under the governing agreements. Which would mean that though creators are contractually rendered copyright holders to some undefined extent, they would, assuming these agreements are enforceable as written, always have to obtain Lionhead's consent before using the works in ways not expressly authorized as part of "game play" -- or risk suit and liability if they do not.

      Note that EFF's brilliant and astute Fred von Lohmann, who was interviewed by Wired News in connection with the piece linked above, cited other potential copyright concerns relating to The Movies, but not the one we're discussing:

      "I predict legal threats against people who make machinima that includes recognizable characters, settings, plots, props and trademarks. Also threats against people who run the 'worlds' and provide the in-game creation tools," he said. He worries that courts will demand that toolmakers like Lionhead "police and filter for copyright and trademark violations in virtual space."

      Also note that as described by Wired News, Peter Molyneux, The Movies' creator, sounds like a fellow who would like to see the non-virtual and virtual worlds work the same way vis a vis moviemakers and their rights: "We wanted you to be able to make your own unique movie in no way controlled or defined by us. I think that's what we've achieved." (He's also described as pro-modding, etc.)

      I'm going to conclude this comment now and do a separate Lawgarithms post on this instead. I'm not sure I come down where Edward does -- i.e.: All your base are belong to Lionhead -- but on the other hand it's impossible to say that "all" your base are belong to you, either. If Lionhead really intends users/customers to have discernable independent ownership rights, it should revisit how those rights are defined and expressed, and/or implement some kind of streamlined process pursuant to which filmmakers using The Movies can obtain Lionhead's consent to uses not specifically contemplated in the game-related documentation.
      Denise Howell
      • It isn't new

        Tools to do this have been on the market for over a decade. [url=http://www.e-frontier.com/]Poser[/url] for example has been on the market since 1995.

        [url=http://www.daz3d.com/]DAZ Studio[/url] is a freely downloadable Poser like tool that also does this.

        There are also some GPLed tools like [url=http://aoi.sourceforge.net/]Art Of Illusion[/url] and [url=http://www.blender.org/cms/Home.2.0.html]the Blender [/url] can certainly do this.
        Edward Meyers
        • Retained rights?

          Have you checked the licensing on these sorts of 3d modeling and animation tools to see if any of them specify that the application's creator retains rights to aspects of works made using the tool? It seems to me The Movies may be unique in that regard as production tools go -- but not as games go, which is why it's so interesting to ponder.
          Denise Howell
          • Message has been deleted.

            Edward Meyers
          • Why did that get deleted?

            It was the license terms??
            Edward Meyers
          • I have no idea

            Sorry, I'll ask our site admins to check it.
            Denise Howell
          • It's not a problem

            I just reposted the comparisons with the links to the online licenses and licensing FAQs instead of posting chunks of quotes from them.

            The only possible reason I can see for it being deleted was there were sizable chunks of the terms and Licensing FAQs in the post... not a problem as I just linked them instead.
            Edward Meyers
          • Yes, they are posted on their websites

            Indeed it is interesting. Games tend to take the stance that even screenshots are part of the copyrighted work and the license tends to specify that they retain rights to the screenshots. 3D rendering tools would not be useful and would not have a market if the tool maker insisted on rights in the rendered work.

            Both of the Non-FOSS offerings that I pointed out publish their license agreements online and both do take the stance that once you render the work (Export it out to a movie or image file) you can distribute, sell, copyright the combined work, sub license, publicly display, etc the work.

            http://www.daz3d.com/support/faq/index.php?id=2

            http://www.e-frontier.com/article/articleview/1491/1/635?sbss=635

            The FOSS equivalents that I posted are governed by the GPL which makes no claims on the output unless it also contains portions of the GPL licensed work, in which case the entire work must be licensed under the GPL.

            And there are other 3D modeling tool that are GPLed other than the Blender one such is called K3D http://www.k-3d.org/ .
            Edward Meyers
  • New ways to make money

    I really like [url=http://tinyurl.com/ov8xo]this article[/url]. Please note the following from the article:

    [i]Industry insiders like McBride think the old model is as antiquated as the 8-track. "The future of the business isn't selling records," McBride says. "It's in selling music, in every form imaginable." And by establishing a series of so-called artist-run labels, McBride is creating the next-gen music company. "We become the management company, the publishing company, and the record company rolled into one," McBride says. "We take our 20 percent cut of the whole pie."

    More important, he says, [b]the new model frees him and his artists from the overgrown bureaucracy of the music industry, and that means more money for everyone. He can book tours, sell ringtones, peddle songs to advertising agencies and, yes, give away free downloads without any of the complex, multiparty negotiations that once gummed up the works. "It used to take months to sell a frickin' ringtone to Bell Canada," McBride says. "With BNL, one phone call gets the job done."[/b][/i]

    I believe when artists create ecosystems around their works, it those who allow their fans to use their works freely, and also allow for the easy and even cheap mass licensing of their works for commercial use, who will come out on top. Artists could come out with really simple licensing schemes such as allowing their works to be used with great freedom in commercial works, and works derived from these commercial works. Licensees could pay for the length of time artists? works appears in their works, or licensees could just pay simple flat fees, then do whatever the want with the works. Artists therefore could make significant money using this scheme, which could stoke an explosion of amateur and commercial multimedia works in the media market.
    P. Douglas