Licensing Severed Fifth 101
One of the key decisions I have needed to make for Severed Fifth is which license I wanted to use for my music. There are a variety of license options available, too many in fact, but the key considerations in my mind were in securing the freedoms I deem valuable for my listeners while also ensuring opportunities for being successful commercially so I can fund Severed Fifth. Throughout the license selection process I was cognisant to get this balance right - in an already limited set of commercial options for free culture artists, I did not want to further limit my options if I didn’t need to.
It turns out that getting this balance right, is bloody hard.
The natural inclination was to go for a Creative Commons Attribution ShareAlike license. This would provide all my music under an entirely free license and people could commercially sell it if they wanted to do so. The problem with this option is that it means that other people can sell my music commercially and put out a Severed Fifth CD, which locks off any exclusivity of me selling the music myself. While to many free culture fans, this is all part and parcel of being a free culture artist, it also limits my commercial exclusivity options. But, the problem is that there are many commercial uses of the music that I would be fine with - I just wanted a shot at determining what I considered suitable in the grand scheme of things. So I then started considering taking our original approach with LugRadio - have a Non-Commercial clause, but simply request permission for commercial endeavors. In every single case someone contacted LugRadio for permission, we gave them permission, so we saw it as an approach that was ethically viable - we just wanted consultation on commercial use.
But this then raised one distinctive problem - if someone took a riff out of a Severed Fifth song and used it to produce a pretty sweet mash-up that they wanted to sell, they would need to seek my permission, despite the mash-up sounding very different from the original material. This seemed unfair to request this permission - by them producing an entirely new work, I believe it diverged the content sufficiently away from it being a Severed Fifth work, yet a Non-Commercial+permission license would put in place an editorial permission-seeking step in what people could sell. Despite this putting control in my hands, I felt uncomfortable with this.
After some consultation with some close friends, I discovered the primary thing I did’t want people do commercially was to sell the music as-is - I want to have some exclusivity with regards to selling a Severed Fifth album with the music as-is. I want to be entirely clear on the reasons behind this. Part of the aims of Severed Fifth is to explore the business models that are available to free culture musicians, and one significant business model is selling CDs with the music on them - to remove exclusivity in this area would not enable me to test if it is valuable. It is always easier to begin with a more restrictive license and then make it less restrictive, so for the first album I want to retain some exclusivity in being able to sell my album. To be honest, this is not something I feel particularly ethically challenged about as the music will be available freely online and the project seeks to promote the sharing of the music within the spirit of free culture. I may not have this exclusivity requirement for future albums, but I wanted to retain it for this first album. The key thing throughout the choice of licensing was resolving the issue of not commercially restricting mash-ups.
So, I was in a bit of a pickle - I didn’t want to have to bottleneck things with permission, but I had very distinctive requirements for my license. Well, it turns out the Creative Commons have already thought through this, the clever buggers that they are. They have a license called the Sampling Plus license which basically allows free copying and duplication of the content, and if the music is significantly transformed, it can be commercially used, but if the music is not significantly transformed or is as-is, a Non-Commercial clause applies. Perfect. Of course, the concept of significantly transformed is difficult to determine, but the legal terms for the license are pretty definitive here. Once again the Creative Commons kick-arse in new and interesting ways. 
So that was the thinking. One thing I want to be entirely clear about is that nothing is set in stone with Severed Fifth, and the licensing applies here. As I learn more about free culture and what opportunities and risks are available, I want to be able to adjust where the project where it makes sense.
July 29th, 2008 at 9:43 pm
[...] Despite this, licensing is a key element of Severed Fifth and I went through quite a mental journey to finalise the choice of the Creative Commons Sampling Plus license. I wrote up a short essay on this which you can read here. [...]
July 30th, 2008 at 1:30 am
I think that sounds like a good license choice. Thanks for sharing your thought process on this; it’s pretty insightful. Like many others, I’m pretty interested in how we can encourage creative commons without giving up our ability to make a living.
July 30th, 2008 at 1:35 am
Well, that being said, I do find it unfortunate that commercial performances aren’t allowed.
July 30th, 2008 at 8:50 am
[...] Despite this, licensing is a key element of Severed Fifth and I went through quite a mental journey to finalise the choice of the Creative Commons Sampling Plus license. I wrote up a short essay on this which you can read here. [...]
July 30th, 2008 at 8:50 am
[...] Despite this, licensing is a key element of Severed Fifth and I went through quite a mental journey to finalise the choice of the Creative Commons Sampling Plus license. I wrote up a short essay on this which you can read here. [...]
July 30th, 2008 at 7:18 pm
I see your point of view about selling CDs to a degree, but ultimately I think the point of this experiment is to try to get away from that business model of selling a piece of plastic to people as a means to make your money back. I think you would have much more success if you thought really radically and tried loads of new things. You should be out crazying Trent Reznor!
I hope you have some crazy ass ideas of stuff to try.
Like here’s a crazy idea that just came to me, why not set up an online store that has a section of things we can buy FOR YOU. So like instead of buying yet another tshirt I can buy a pack of strings or something that you need from the list of items available. Really it would just be a donation of a certain ammount, but it means I have a tangible concept of what I have donated rather than it be a number. Maybe in return I get an email I can print out saying I have officially supported Severed Fifth by buying a pack of strings. I would love to be able to say I had bought a pack of strings for the guitarists in my favourite bands.
September 11th, 2008 at 9:56 pm
Hi Jono,
Very interesting, and I must admit, a little disappointing. A few random points –
“one significant business model is selling CDs with the music on them”
Yikes, is that ever old school.
Admittedly this quote is taken out of context — next sentence you say you want to test this, which is always good.
FWIW Sampling+ is not without its issues. First is that (in my experience talking to people) it is not well understood, or rather not well remembered — the concept of commercial transformative reuse but no commercial distribution is simple, but people easily forget which the license permits. Second, because the license also prohibits any ‘promotional’ use except for promoting the derivative work itself, it isn’t clearly compatible with other CC licenses, including NC ones, see http://ccmixter.org/thread/1574 for one discussion (though here as there IANAL etc).
There’s also a disadvantage to the original artist relative to BY-SA — you aren’t assured of being able to use derivative works yourself, but that’s a disadvantage of any license vs BY-SA.
IMO the ideal offering for someone who wants to prohibit verbatim commercial distribution and encourage all reuse is to license fully mixed tracks under BY-NC[-ND] and stems under BY[-SA]. Admittedly this is also complicated, but gives everyone precisely what they need.
Less complicated is to just use the most liberal license possible. I hope you’ll eventually come back around to that (or close, BY-SA is not the most liberal, but does hold a special place in promotion of free culture), but eager to see how the whole experiment comes out, of which licensing is just a small part.
Rock on! (Is there a metal version of that phrase?)