What Defines Commercial Use?

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In this article we’re going to be discussing Creative Commons licenses and what defines ‘Commercial’ use.

Having been releasing CC music for over a decade, and selling licenses for Commercial use, I’ve managed to gather a fair bit of experience when it comes to some of the more legal aspects of what we do. Personally I release my music on the most restrictive CC license BY NC ND 4.0. Let me explain why this is the CC license I finally decided to use.

Often someone will contact you asking to use your music for free for a ‘Non-Commercial’ project. This can range from anything from a personal home movie to a promotional video for a NGO or non profit organisation.

But what truly defines Non-Commercial?

A lot of people seem to think that if their project is not making money directly, then it is non-commercial. This however is not the case.

A Commercial project should be seen as ANY project that is linked to an organisation, company or entity. Although the project may not be to directly make money from, it will always be promotional to a cause, and the content they make helps to build their ‘brand.’ It can therefore be seen as Commercial use if your music is used in this way. Anything that is promotional to a cause or linked to an organisation can be viewed like this

For example, a non-profit organisation may want to use your music for free for a ‘Non-Commercial’ video highlighting a certain cause they’re involved in. If your music is released on a CC License allowing Non-Commercial use, they may just use your music without contact assuming their use is covered.

However, the project is linked to the organisation and therefore promotional in nature, the people who made the video are being paid… so why should your hard work be used for free?

You’d be truly amazed at what some people deem ‘Non-Commercial.’ I’ve been contacted by film companies hired to make a video for an organisation, claiming that the organisation wouldn’t be making any money directly from the video, therefore it’s Non-Commercial. However the film company is paid to do their work. Should your music be used to save film companies their music budget whilst leaving you unrewarded? Personally, I think that’s totally wrong.

Another example – a podcast uses your track for a ‘Non-Commercial’ podcast. Two years on, they’re a massive podcast with sponsorship and advertising. Do they come back to clear your music? Unfortunately, the majority of the time they don’t. This is why it’s preferable to legally clear music in perpetuity with the copyright holder at the start to avoid any confusion/legal issues that may arise in the future.

Releasing music on a BY-NC-ND 4.0 license negates this confusion happening. The No Derivatives clause in the license allows you to have far greater control over the use of your music. You’re still able to allow free use to any project you see fit to, but it protects your music from being misused by people who don’t fully understand CC licensing, of which there are many.

I’ve been through Commercial and Derivative use with music solicitors and been on the winning side each time. A large NY media company used 13 of my tracks for their associated podcasts as bedding music without my permission.

When contacted about breach of copyright, they claimed their use was totally legal, the podcasts were Non-Commercial and not considered a Derivative. I was pretty angry to be honest, and immediately got a solicitor involved. The media company had no ground to stand on. Podcasts are a Derivative work if they include your music and it’s being talked over, faded, edited etc. Commercial use includes these companies creating content using your music… as they are a media company whose job is to provide content, of course then these podcasts using my music illegally, adds to their content and feeds their ‘brand ‘

Needless to say I managed to get a large payout, in the thousands. All that to avoid a £120 subscription fee. This has happened numerous times and I’ve never lost, so I feel I have a good understanding of the legal issues and grey areas here.

Ultimately, what CC license an artist releases their music under is up to them. I am just much more comfortable having more control and clearer guidelines over the use of my tracks. I am also sure I pick up work that may be lost under another CC license that allows ‘Non-Commercial’ use due to people’s misunderstanding of that term.

Therefore, here at the IMLC, we view any adaptation or derivative use of our music that represents an organisation in any way as promotional in nature and therefore regarded as Commercial use.

Our fees are very low and our music is of a high quality. We hope to form a symbiotic relationship with our licensees, where clients are able to massively save on budget whilst also helping independent artists thrive. So please join us in this exciting music licensing revolution!

Ketsa