Creative Commons-licensed music for videographers

It can’t be a coincidence. Twice in one day I was asked where videographers can find some royalty free music, so after having done my own research a few months ago (and having asked a friend lawyer and the Creative Commons’ own lawyer too) I decided to write down what I know about the issue (this is not legal advice, just my own knowledge on the subject). And it is an ‘issue’, because finding true “royalty-free” music is a difficult task.

So, according to the very restricted definition of “fair use” that most countries have, you can’t use a copyrighted, commercial composition with your home videos of your dog. Just like you are not allowed to rip your own DVDs for your own iPod. Yes, the “fair use” law is not that fair, but that’s the law, and it’s the same for most countries.

Because of these limitations, the Creative Commons (CC) project was created. CC is not a single license, but rather a combination of license components (“clauses”) that the artist can pick and choose elements to put together a custom license. Here is an overview of these clauses, which you better read them and understand what each does. The artist can use any combination of these 4 clauses (by, sa, nd, nc) to license their musical work (e.g. by-sa, or by-sa-nd, etc).

Now, as a consumer videographer, chances are that you are not shooting video for money. Which means that either Public Domain licensed music (there are not many high quality public domain recordings btw), or Creative Commons one will be ideal for your projects.

NOT SO FAST.

According to the CC lawyer, music that is licensed under the “nd” CC license (“non-derivative”), can not be used with video. Syncing between audio and video is prohibited. I personally believe that this sucks royally, because 50% of Creative Commons licensed music is actually using the “nd” clause. The CC project started with “freedom” in mind, but by defining “A/V syncing” as “derivative work” (even if the actual music was not modified over the original), it limits videographers immensely (I _really_ wish that the CC founders change that clause to include video in the future). So, any music that it’s marked with the “nd” clause is currently out of the question.

Then, there is the “NC” clause (“non-commercial). Be very careful about this one. Even if you are not charging money for your video, if you upload that video on a site that has advertisement (even if that’s your own blog, or YouTube), then that’s *commercial use* and it’s prohibited. However, if you only use it for your own burned DVDs, including burning for your friends and family, that’s ok.

Then, there is the “SA” clause (“share-alike”). This clause allows usage of the composition as long as your video is licensed under the same license. This is not too bad, but it also means that if you have a great shot that Steven Spielberg wants to use as stock footage, he can’t, because his movies won’t be licensed under the same license (he will have to get written authorization directly from you to get around the “sa” license). This is a “viral” license, similar to what the GPL is in the software world. Anything that uses music licensed as such, will have to use the same “sa” license from then on. Same goes for the popular French “ArtLibre” license (aka “Free Art License”), which is also viral.

Lastly, there is the “by” clause (“Attribution”). This is the most liberal for all the CC licenses, as it only asks to give credit to the artist, in the credit roll. That’s it, there are no other restrictions. That’s what I personally use for my projects (check my credit roll). This license is similar to the BSD license of the software world. Only problem is, from all the CC music available, there is less than 5% licensed only under the “by” license, so selection is limited.

Of course, as I said above, there can be combinations of these clauses, so pay attention when you download a piece of music. There are also some other types of clauses (e.g. CC with no clauses at all, Sampling+, etc), but very few compositions are licensed under these, so I won’t be explaining them here.

Now, you probably feel doomy and gloomy about all this, but there’s not much you can do other than learning to compose your own music yourself. Creative Commons licensed music –despite these severe limitations specifically for videographers– is still the No1 source for free music. Download such music from Jamendo (Bittorrent is not required to download from there btw, just open the .m3u playlist files with a text editor and copy the .mp3 URLs to download), and from ccMixter.

Again, be careful under which clauses each album/song is licensed under. Finally, if you actually download from ccMixter, be very careful to NOT use compositions that remix upon commercial songs. For example, a potential ccMixter remix of Linkin Park’s “Numb” song will be a violation of Linkin Park’s copyright if you use it on your own video, even if the actual remix is licensed under a CC license (allowed exceptions: journalism, parody, educational purposes, or if the song was directly licensed from the band/label). In other words: choose original compositions, and choose wisely!

Good luck with this mess.

Alternatively, you can simply license a full album from Magnatune for just $5 (includes youtube allowance, although it’s required that your video is non-commercial otherwise), and be done with it. You can select from 500+ professionally-recorded albums.

19 Comments »

mikesum32 wrote on September 7th, 2007 at 3:58 PM PST:

“You can’t use a copyrighted, commercial composition with your home videos of your dog.”

Well you can in the USA. In fact fair use *is* a consumer right. I can’t believe you just swallowed a big load of FUD. It’s not explicitly stated, but rather confirmed by court rulings and it’s inferred from the constitution. That’s why VCRs exist, and Tivos. So yes, in fact you can use that song in your video of your little doggy.


Luis wrote on September 7th, 2007 at 4:34 PM PST:

The Creative Commons license(s) is a bit of a mess. Mixing up Free with non-Free clauses makes users quite confused. Most people just think “Oh, it licensed under CC, so it’s Free”. But as you say, it’s not that simple.

I agree with your analysis:

by (Attribution) = BSD
sa (Share alike) = GPL
nd (non-derivative) and nc (non-commercial) don’t have an equivalent in Free software, simply because they’re not Free (and wouldn’t be approved as Free licenses). These two variants are used by people who actually want to exploit their music commercially, but since they can’t (they’re not famous enough), they take advantage of free distribution channels while retaining most other rights. I suppose that most of these people will stop using the CC license as soon as they’re famous enough to make their music commercial. Not that I think this is wrong – I much respect each one’s decision to do with their music what they want. I just think it’s a mistake to mix these license variants under the same CC umbrella. Bad for users and bad for those artists who do believe in Free music.


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Eugenia wrote on September 7th, 2007 at 6:47 PM PST:

Mike, no, you can’t use a big label song on your videos. Fair Use is NOT a consumer right. The guy from the CCIA who wrote about that yesterday and his article was linked from slashdot and then slashdotters attacked him is actually RIGHT. This is why papers like this were written by lawyers too, to “fix” fair use.


John Buckman of Magnatune wrote on September 8th, 2007 at 12:18 AM PST:

I totally agree with your analysis: re-using content under CC licenses is very problematic. At Magnatune, for our album covers, we stick to CC-BY licensed photos from Flickr, because of similar issues.

Also, the same issues you write about with video arise with podcasts: ie, one CC-SA song on a podcast can force the podcast to be also CC-SA licensed, ND may prevent the song from being included in the podcast (though there is some question of what kind of podcast use of music is a “derivative use”). And of course, most podcasts show up in iTunes, which is clearly commercial, and so the NC clause is problematic too.

That’s why with Magnatune, we did a “podcast license” to make things clearer.

At CC Mixter (an audio remix site), they’ve simplified the number of license choices available to uploaders to mitigate these problems.

Thanks for your thoughts…

John (of Magnatune, and also a CC Board Member)


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Eugenia wrote on September 8th, 2007 at 3:05 AM PST:

John, thanks for the feedback.

BTW, my main complaint is the fact that while most of my videos are usually licensed under the Creative Commons “By” license, I still can’t use any CC music in them other than “By” licensed music. Given the fact that there aren’t that many “By”-only compositions out there, it just feels limiting for a “Freedom” movement like CC is.

In the software world, agreements were made so “similar in philosophy” open source licenses were deemed ‘compatible’. For example, you can mix BSD and GPL source code on a project without having to change your project’s license to GPL. And you can host that project’s tarball on a web site that has ads (e.g. Sourceforge, frenshmeat).

Amazingly enough, you can’t do the same thing with CC-licensed Audio/Video projects. If you use CC-”SA” licensed music you have to change your footage’s license to that license too, if you use a CC-”NC” music you can’t host your video on YouTube, and if you use CC-”ND” you can’t use the music at all. This takes out 90-95% of the CC music for your (also CC-licensed) video projects. This is preposterous IMHO, and I find amazing the fact that the software world solved the problem with the “license compatibility” agreement but the CC guys haven’t yet. I hope a solution is found soon.

Thanks for Magnatune btw. It’s the only real solution IMO right now for the specific video problem — short of finding good CC-”by” music in that limited selection of 60 albums that exist under this license so far.


Rob wrote on September 12th, 2007 at 10:23 PM PST:

I disagree with your characterization of the “derivative work” issue – it’s not a technicality of A/V syncing that makes it illegal to use ND audio in a video work. Incorporating one work into another makes the second a derivative of the first, and is thus explicitly forbidden by the ND clause. (Clearly, there are fair use issues here, but you’re outside the realm of fair use, and hence the need for this license examination.)

We normally think of derivative works as being in the same medium as the original (ie. remixes), but this not something inherent in the concept of a derivative work. When someone says you many not make a derivative of a work, that applies across all media. In prohibiting you from incorporating an ND work into your own, the license is working as intended.

Now, while I disagree with your characterization of this particular issue, I do sympathize with you – I think that your desired use of the audio works is one that many creators who currently produce ND works would support. I suspect that, when choosing the ND clause, they are largely deciding to opt-out of remixes and the like. Perhaps an optional exception to the ND clause that says, basically, “you are allowed to incorporate all or part of this work unchanged into another work” would address the issue – though I suppose there might be trouble legally defining “unchanged” (is an audio sample unchanged?).

And, you leave out another (not always practical) option – if you find a work you want to use, but an “incompatible” license, you can contact the creator (assuming you can find them), and request permission to use their work. If you’re dealing with work already under a CC license, I would guess your chances of getting permission are good.

Oh – and, of course, standard disclaimer: I am not a lawyer, or anything resembling one…

Good luck with your videography work!


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Eugenia wrote on September 12th, 2007 at 10:42 PM PST:

Thanks for the comment. I agree that the CC-ND clause is not likely to change because the notion of “synching” is clearly defined in the US law. However, if they could at least modify the CC-NC clause to allow works to be published on youtube, and the CC-SA license to be deemed “compatible” with the CC-BY so the video work doesn’t have to change its license to CC-SA too, then we are good. I mean, now I can only use about 5% of the CC works. With small CC-NC and CC-SA modifications I could go all the way to 50%. In which case I wouldn’t mind the CC-ND license not changing because there would be enough selection already.


lkratz wrote on September 13th, 2007 at 1:07 AM PST:

Hi !

Creative Commons requires a learning curve. For anyone as a user, but more specifically for artists (rightholders). What we see at Jamendo, is that some artists are now publishing some of their work in light grey licenses (cc-by, cc-by-sa, art-libre) and some of their work in dark grey licenses (cc-by-nc-sa, cc-by-nd-nd).

So it’s up to the rightholder, and it makes some time to an artist to feel confident with one license or another.

Creative commons is not that old, but we’re confident that it will evolve.


Laurent from Jamendo.


Rob wrote on September 13th, 2007 at 1:15 AM PST:

I think it’s very hard to allow NC YouTube use without enabling abuses of the system. In this case, you’re not making any money off the work, so it’s fair to say that you’re not commercial, but YouTube clearly is. When you upload content to YouTube, you’re basically giving them permission to make money off of it, by showing ads. Which, if your work contains someone else’s, seems slightly unfair, but not too bad – I think most of us can agree that YouTube making a little money from of our content is a reasonable tradeoff for hosting it for free, and the creator of the audio track can probably live with the fact that someone’s making a little money off of his NC content. But consider this: let’s say you make a video (using CC-licensed audio) that’s so damn cool that CBS (or whoever it is that has the Super Bowl monopoly) wants to show it during the Super Bowl halftime, and sell ten million dollars worth of ad time during your video. If they’re not paying you anything for its use (ie. you are still non-commercial), should you be able to enter into a YouTube-like agreement with them? After all, they are ‘hosting’ your content (which happens to include content from another creator). Sure doesn’t seem fair to the creator of the audio. Clearly, there is a line somewhere in here between YouTube and the Super Bowl, but I think that line is probably incredibly fuzzy – and keep in mind that YouTube sold for over $1.6 billion, so the two are closer than you might think. And it’s probably very hard to define this line legally.

The crux of the problem, it seems to me, is that such an exception could help to create a system in which the creators of content with an NC license (in this case, ‘forced’ on you by the use of an NC audio track) don’t have the chance to make any money off their content – which will be just fine with many of us – but their distributors do. Which is a big part of what’s broken about our (American) copyright system – record labels all over again. (Present company excepted, of course :) Oops. (At least, unlike with a traditional record label, you still own the copyright.)


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Eugenia wrote on September 13th, 2007 at 1:23 AM PST:

Which is why I like to license my video and audio separately. If NBC wants to use my video, I want them to be able to ONLY use the footage, NOT the music. For that, they will have to contact me to get the original. When I put my videos under the CC-BY, I put the footage only, not the whole work.

Basically, I would like for this distinction to exist, so I can use audio that it’s not necessarily that compatible with the footage, e.g. CC-SA. Also, I would like to see a “compatibility” clause, that won’t force my CC-BY to become CC-SA, but allow the licensing of A/V separately.


Anon wrote on September 13th, 2007 at 2:15 AM PST:

Eugenia, have you tried contacting the people whose music you’d like to use? I’d readily imagine they’d be cool with the uses you describe. I find Gwen Stephanie’s “Wind it up” to be a far better motivation for ND than someone using it as a video track, and Youtube is NOT the Superbowl. So get ahold of them, I’ll bet “Uh sure, dude, that’s cool” will be pretty dang common.

A more general solution will have to come by changing the licenses themselves. ND is easy – stipulate that applying the unchanged work to a different medium is not a derivative use. I don’t know of anyone outside of lawyers who’d think that using a song, unchanged, to accompany a video somehow changes the song. As for NC, perhaps add some reasonable estimate of profit from the use, below which it’s free for clearly-not-that-commercial-anyway use?

Also, your captcha sucks. Took me three tries to get words with characters I could actually read.


Ben Alexander wrote on September 13th, 2007 at 4:39 AM PST:

Eugenia writes:

In the software world, agreements were made so “similar in philosophy” open source licenses were deemed ‘compatible’. For example, you can mix BSD and GPL source code on a project without having to change your project’s license to GPL. And you can host that project’s tarball on a web site that has ads (e.g. Sourceforge, frenshmeat).

I am not a lawyer, but I think this is badly incorrect. If you mix any GPL code into any project then the whole project must be released under the GPL. That’s what makes the GPL viral.

The FSF does have a list of ‘compatible’ licenses, but that compatibility goes one way only: for developers writing ‘free’ software under the GPL, and only the GPL. That’s what the FSF thinks makes software free. If you are writing GPL software, the FSF is providing advice on what kinds of code you may incorporate into your project. If you aren’t writing GPL software, the FSF provides the advice: “Don’t write non-free code; use the GPL”. They are … ah … focused on that “free” as in “freedom” thing.


Ben Alexander wrote on September 13th, 2007 at 5:33 AM PST:

Eugenia writes: Then, there is the “SA” clause (”share-alike”). … This is not too bad, but it also means that if you have a great shot that Steven Spielberg wants to use as stock footage, he can’t, because his movies won’t be licensed under the same license (he will have to get written authorization directly from you to get around the “sa” license).

You say this isn’t “too bad”, I’d say it’s FANTASTIC, the ideal, the gold-standard of licenses. What exactly is bad about it?

Anon wrote on September 13th, 2007 at 2:15 am PST:
Eugenia, have you tried contacting the people whose music you’d like to use? I’d readily imagine they’d be cool with the uses you describe.

Since you indicate that getting a call from Spielberg is somehow burdensome, (for him? for you? both?) I’m curious how you feel about Anon’s suggestion.

To my way of thinking, the :SA license provides the content creator/sharer a zero-pain way of giving to the community of creator/sharers. You put it out there and if anything gets done with your creation, you get to use it yourself. That’s the payment. If the NFL Super Bowl folks or Spielberg come knocking (how do they find you? hmm…. better attach that :BY clause) then you can sell all the stuff you created. But you’ll only get a portion, as the price they are willing to pay will have to cover all the works you derived from (hope those other creator/sharers put :BY in their license too).

But maybe you are worried about a different kind of person: the audience. If someone sees what you made on YouTube, and copies it(? is that possible? — maybe they just point their webcam at their screen) to send to their techno-phobe mother, that’s one thing. If someone puts it on a VCD and sells it on the street (!) you want a piece of that! But the :SA license prevents that from spiraling out of control. Someone selling :SA VCDs has to allow anyone they sell to to make a copy and share it. No-one gets rich on shareware unless they add value (editoral value, most likely, i.e showing the good taste to select your stuff and bypassing all the garbage). If you include the :BY clause, then you are getting free advertising, and after buying one copy of a VCD, the audience can (if they care enough) come visit your website, bypassing that guy on the street. Or they could burn their own copy: no cost to you, more exposure, word of mouth recommendation, and everybody gets that link to your homepage. Isn’t this the best you could hope for if you start out by posting a link to YouTube? They don’t pay you anything either, why should the guy selling VCDs on the street?

And the NFL could do the same thing, couldn’t they? Let’s say, for the sake of the argument, that the NFL protects everything about themselves they care about: their logo, trademark, teams’, the game itself, blah, blah, blah, and they STILL want to show your :SA :BY video without the bother of contacting you for a different license. So they announce that they are going to show your video, and they announce that the terms of use will NOT apply to anything else going on during halftime (I dunno if that’s legal). And then after they play your video, they cut to a commercial, which they sold for gazillions.

Are you really bummed? That audience sitting there… is that YOUR audience? Or the NFL’s? The NFL just played your whole credit roll (:BY clause!) and everyone who is taping the game now has a copy they can use in their own home movies (:SA clause!) but only if they allow people to copy and use their content. You didn’t make a dime.

I guess I wouldn’t wish that on any artist — over exposure is what brings creative geniuses like, uh…., Britney Spears to the brink of irrelevance. It would be heartbreaking to watch, especially as you wouldn’t have to get any warning (they didn’t contact you after all).

The NFL isn’t going to do that, ever. They’ll call you first and ask for a commercial license. If the whole thing is your original creation, then you might just be a rainmaker! If you’ve got Spielberg knocking on your door, what you ought to do is slam it in his face and start the next Disney corporation. Make sure to grease the palms of all the congresscritters you’ll need to extend copyright to the limited (as required by the Constitution) duration of, say, 1_000_000 years, and you’ll be taking a walk on Park Place, building hotels on Broadway.

Of course if the NFL or Spielberg (or more likely, someone without the paid licensing team) finds this too much hassle, they might be encouraged to just licence their work under the :SA clause too. You can consider that part of your payment, too.

Just my thoughts…


Dylan wrote on September 13th, 2007 at 7:35 AM PST:

Re: “viral” licenses
I think it as a mistake to characterize CC-SA and GPL as a “viral” license. It is copyright itself that is viral, not that those licenses in particular.

Image Bob creates a work, that contains material from Alice. Now the derived work is “infected” with Alice’s work, and one would need both Alice and Bob’s permission to distribute the result. This is true no matter what license is used, as long as both works are copyrighted.

This only shows the whole “viral” metaphor is misleading, and implies the “infection” is somehow involuntary or unfair. Bob had a choice, he chose to incorporate Alice’s work, and the price is that he must comply with the terms offered by Alice (in the case of SA, that price is to share his own work in return). If he doesn’t agree with those terms, nobody’s forcing him to use Alice’s work.


Rob wrote on September 13th, 2007 at 8:39 AM PST:

I think that allowing the use of an SA work in a BY work (without the SA clause) is a bad idea, period – it’s exactly what the person who created the SA work has, by putting the SA clause there, forbidden you to do. I don’t see why the fact that one work is audio and the other video should grant them a special status – but I’m interested in hearing arguments for it.

The solution here, I think, to use Lessig’s terminology, is a normative one, not a legal one. It’s not that the SA is a “bad” license in the legal sense – it’s accomplishing exactly what it’s supposed to. If we (for some definition of “we”) think that BY licensed work is better for the creative community than SA licensed work, the right thing to do is not to “break” SA by making it BY compatible, it’s to encourage people to use the BY license in the first place (and to use it ourselves). For example, if you chose to contact creators to ask them for permission to use their music, you could explain the problems you have with their current license, and suggest that, rather than just give you permission to use their work, they release it under a less restrictive license.

I think that if any clause should be revised or get an optional exemption, it should be ND, not SA, since the use you would like to make of the work is in keeping, I feel, with the “spirit,” if not the letter, of ND.


Anon wrote on September 13th, 2007 at 9:43 AM PST:

Thinking more on the subject, I wonder if the problems we’re seeing with open source audio isn’t just an immature field beginning to test its boundaries. The debate we’re having over the NC clause in particular feels like open source software ten-ish years ago, when a number of GPL products closed up and started hocking their wares like nothing had ever happened. PGP is a notable example.

Thing is, NC and ND aren’t free licenses, which would prevent any openPGPs from cropping up, and this is never spelled out to people choosing CC licenses or uploading to CC sites. If NC means their song will never be on youtube, I think that’s something they’d want to know beforehand.

These artists want the exposure of CC while retaining the control which NC and ND promises them, but those two only deliver bipolar licensing terms that ensure their work will never get much exposure. This issue’s complicated by the vague nature of NC and ND’s description on creativecommons.org, and that the extent of restrictions imposed by these two are never described. For example, “or ad-driven commercial sites like Youtube” would clue people in more than just “commercial applications” for NC.


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Eugenia wrote on September 13th, 2007 at 11:18 AM PST:

>SA: FANTASTIC, the ideal, the gold-standard of licenses.

For you maybe, not for me. I want my video *footage* under the more BSD-like CC-BY, not CC-SA. I don’t want to force people who would use my footage to become CC-SA too. I want to give them the freedom to use my *footage* (not necessarily music) in any way they want to, including for commercial non-SA projects. Yes, at our house we prefer the BSD license over the GPL, thank you very much.

>have you tried contacting the people whose music you’d like to use?

I have done so for 3 pieces, yes. It’s a long process of emails going back and forth — and some never reply. It’s not something I would recommend people to do.

>Also, your captcha sucks. Took me three tries to get words with characters I could actually read.

There is a little “reload” button on the captcha, click it to get words that you can read. I use reCaptcha because it offers something back. These words are part of non-digitized-yet books, and so each time you use reCaptcha, you give something back to the society.


Rob wrote on September 14th, 2007 at 10:32 AM PST:

On further reflection – Maybe what you want is basically the CC equivalent of the LGPL?


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Eugenia wrote on September 14th, 2007 at 11:27 AM PST:

I basically want a bit more freedom, and/or more selection. How this is achieved, I will leave it to the lawyers to figure it out. :)


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