Does a Creative Commons license allow me to record a cover of a song recording? If I find a musical sound recording that is licensed under a Creative Commons (CC) license, can I record and distribute my own cover of the song? (Assuming the particular CC license does not carry the No-Derivatives provision.) A derivatives-allowed CC license would allow me to redistribute and modify the recording itself, but making a new recording seems like a different category of action. My concern is that the sound recording is CC-licensed, but the musical work may not be. Does my license-granted right to prepare derivative works of the sound recording include the ability to record my own cover, even if the musical work has not been licensed to me? If U.S. law alone does not allow this, does the text of any Creative Commons license itself allow it?
There are two separately copyrightable elements to a sound recording, as you point out: the musical work, and the performance. If you want to record a cover version of a song, what matters is the license you hold, if any, to the underlying musical work. The license to the recording is not relevant unless you are sampling or duplicating the recording. The key, however, is that whoever you got the song from has the same issue. With this in mind, there are three basic scenarios: 1) The recording is released under a cc license, but the song is in the public domain. If the song is in the public domain, the recording license is irrelevant; you have the right to cover it. 2) The recording is released under a cc license, but someone other than the recording artist holds the rights to the musical work. In this case, the recording artist almost certainly does not have the right to distribute the recording under a cc license. Musical works are subject to a "mechanical license;" this means that you can record a cover version without permission, but only if you pay royalties to the composer. If you record a cover under these circumstances, both you and the person who attempted to release the item under a cc license will be liable. 3) The recording is released under a cc license by a recording artist who also holds the rights to the musical work--in other words, an original composition. In this case, the answer to your question will depend on the specific license language, and a court's interpretation of it. The CC license defines "Licensed Material" as "the artistic or literary work, database, or other material to which the Licensor applied this Public License." Some CC licenses permit the Licensed Material to be "translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor." Some don't. The CC web site lists litigation involving their licenses, and no litigation listed there seems to address the question of whether, when a CC license is applied to a sound recording, the "Licensed Material" includes the underlying musical work. It is therefore hard to predict what a court would do; you would need an opinion from an experienced intellectual property attorney licensed to practice in your jurisdiction. Or, on a more practical note: if you aren't sure, ask the license holder. If they give you permission, that resolves the issue.
One cannot use the works of others unless one of the following applies: The copyright holder has given permission, usually in the form of a license, often explicit, but sometimes implied. The work is not protected by copyright. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software. If an exception to copyright applies. In the US this would most likely be fair use. In the UK it would probably be fair dealing. In other countries there are a variety of exceptions that might apply, including personal use in some. AS a comment by Jen points out &quot;use&quot; here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.) Now lets consider the specific situation, and which if any of the reasons for lawful use might apply. License or other permission. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything. Expired copyright This pretty clearly will not apply. Fair use This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess.
Copyright protection exists for any work (picture, paragraph, song etc), and persists for many years until it expires. Unless the work was created a long time ago, or was created by the US government (not the same as &quot;funded by government money&quot;), you should assume that the work is protected. That means that you must have permission to copy it. Sometimes, a work has associated with it some such permission, in the form of a &quot;license&quot;. Without such a license, you have to request the copyright owner for permission to copy – whether or not they say that the work is protected by copyright (because by law it is protected, so they don't have to say that it is). If you request permission to copy, and do not receive the required permission, then you cannot legally copy the work. The copyright holder has no obligation to explicitly deny permission. You can certainly list the URL for an image, you just cannot copy the image in your book.
I know that classical music is public domain, so no-one can claim that they own classical music. That's not quite right, at least not under US law. First off, "classical music" is a style, and music in that style is not automatically in the public domain. The rule for if music is in the public domain depends on when it was written, not what style it's in. For instance, music written in the US after 1926 is likely to still be copyrighted. Second, that's about copyright in the composition. A recorded performance has its own copyright, separate from the copyright the composer has in the composition. Even if Beethoven's Ninth Symphony is public domain, a performance of it by the New York Philharmonic involves creative interpretation and belongs to the orchestra (assuming it was recorded). So unless the recording you used was public domain, it still is subject to copyright. In the US, copyright for recordings after 1972 mirrors normal copyright law; copyright for recordings before 1972 is complicated. Third, Youtube's system involves some amount of automation. It is possible that the Content ID claim involves an automated system incorrectly thinking your recording was a copyrighted one. That's why you can dispute a Content ID flag and ask the copyright holder to review it manually.
1. Is Bob's usage considered a derivative work under US copyright law? Possibly. Under US law, a derivative work is: … a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. Lee v. A.R.T. Co. - 125 F.3d 580 (7th Cir. 1997) is on point here. There the court held that originality was essential to a derivative work. The selection of a particular frame out of the many available is an editorial choice that possibly meets the threshold for originality and is, therefore, a derivative work. Or it isn't and it is merely an abridged reproduction of the original. It depends on the facts. These include how much editorial originality the selection of the particular frame requires (e.g. the choice of a single frame from a highly dynamic video like a fight sequence requires more originality than the choice of a frame from a pan across a static landscape) and the circumstances surrounding its use. 2. Is Bob's usage considered an "adaptation" under the CC-BY-ND license? Maybe. If it’s a derivative work under applicable work then it is ipso facto an adaptation because that’s how the licence defines adaptation. If it isn't, then it isn't.
"I understand that a transcript of a podcast or video is a derivative work, and only the copyright owner can authorise creating a derivative work." You've answered your own question, at least for the US and Berne Convention (Wikipedia) signatories.
The basic principle about copyright protection is that the expression of an idea is protected, but the idea itself is not. So wholesale copying without permission is infringing. But the abstract algorithm is not protected by copyright (and let us assume that it also isn't patented). By way of analog, an insertion sort is a pretty easy concept to grasp, and once you understand it, you can re-create it, independent of how the original example (where from you learned about the sort) is expressed. So the question is whether it is necessary for you to copy that code (copyright protects against copying), or can you independently re-express the algorithmic idea (ideas are not protected)?
In general, a gameplay video would be either a partial copy or a derivative work, and in either case an infringement if created without permission. Such a video might be covered under fair use in US copyright law, particularly if made for the purpose of commentary on a game or instruction in how to play or design a game. In general, a fair use defense is more likely to succeed if only the minimum amount of the work required for the purpose is used, and sound tracks might not be required for such a purpose. Thus a maker of such a video might choose to omit the sound to improve the fair-use case. Moreover, when the sound track contains licensed popular music it would be subject to a separate copyright, and many music publishers are notoriously litigious, so prudence would advise omitting the sound. All that said, fair-use is a case-by-case determination, and if the makers of such videos have not been sued, they (and we) can only guess how a case would turn out. As to why game makers refrain from having such videos taken down (if they in fact do refrain) one can only speculate. Game publishers may consider the videos good advertising. Questions based on the absence of legal proceedings are inherently speculative, unless a copyright holder has announced a policy of not taking action and the reasons for it.