Navigating my first CC license

I used a song in a video that was licensed as non-commercial sampling plus under creative commons.

Of the 5 minute song, I cut about 1 minute in the middle.  Otherwise, it played as background music to the video unaltered.

The big question is whether I am allowed to use this music in the video as background sound at all under the terms of the license.  Here is the most relevant section:

2(b)  Noncommercial re-creativity permitted

You may create and reproduce Derivative Works, provided that:   

(i) the Derivative Work(s) constitute a good-faith partial or recombined usage employing "sampling," "collage," "mash-up," or other comparable artistic technique, whether now known or hereafter devised, that is highly transformative of the original, as appropriate to the medium, genre, and market niche;  and

(ii)Your Derivative Work(s) must only make a partial use of the original Work, or if You choose to use the original Work as a whole, You must either use the Work as an insubstantial portion of Your Derivative Work(s) or transform it into something substantially different from the original Work. In the case of a musical Work and/or audio recording, the mere synchronization ("synching") of the Work with a moving image shall not be considered a transformation of the Work into something substantially different.

The first question raised is whether the combining of the song with a video constitutes a good faith recombined usage employing "sampling", "collage" or "mash-up" that is highly transformative?  Derivative works are intended to encompass integrated forms of media, and it seems that combining a song with a video is highly transformative of the song (i.e. it becomes a music video).   Although I only spliced the song in one place, it was a good faith effort to recombine the song with the video footage, and in fact the only guide I used to determine what and how much to cut was the overall feel of the finished work.

Someone could argue, given references to “sampling,” “collage,” “mash-up”, that it is intended that audio stay only as altered audio.  But the language in 2(b)(ii) above indicates that synching the song to video was definitely envisioned by the licensor.  While it says the mere synching of the song to video is not a transformation of the song into something substantially different, the substantially different language is only relevant in paragraph 2(b)(ii), not 2(b)(i).  Thus, the license itself appears to concede that synching the song to video is accepted as highly transformative, but not as substantially different.  And because I only make partial use of the song in the video, the substantially different language and its conditions would not apply to me.

One final point, this was not intended as a promotional video, but a piece to be enjoyed by those who attended barcamp.   Neverthelees, the cc deed says that it can't be used to promote anything, but the license itself is silent (and by its language the license is the only agreement that matters).  Is that an oversight, or am I missing something?

My point is that I think we need ways to make things even simpler than this license.  I'd like to continue to explore the work of the creative commons and get involved when time permits, as I think there's something definitely there that is needed to make sure our culture continues to flourish.

Comments

[Pete Prodoehl]

It's great to see someone bring up these issues. I too have used Creative Commons licensed music in my videos, and I've felt that I've been complying to the spirit of the license, but I wouldn't mind someone more knowledgable than me figuring it out.