Here’s a nightmare scenario for you–you hire someone to create a work, co-write with anyone, record with anyone, and you find out after the services were rendered or the works were created that you’re dealing with one of the gullible creatures who signs up for Creative Commons. If that person has made the work (or a version of the work that your work is based on) available under a Creative Commons license, you’re potentially in trouble. (That’s a bit of a copyright joke, “made available” under a Creative Commons license, get it?)
This is particularly true of co-writes that are not works for hire. Remember–the Creative Commons license is not currently capable of dealing with co-writes. It not only anticipates that each work is created by a single person (which is probably as likely to be true in the case of a song as it is likely that the work was a co-write by at least two songwriters), but it does a very, very poor job of distinguishing between the two copyrights that every first year music lawyer knows are present in a sound recording–the copyright in the sound recording itself, and the copyright in the song that is recorded in the sound recording.
It’s not surprising that the financial backers of Creative Commons (that have been announced, anyway) are all tech companies (including Professor Lessig’s benefactor, Google) that probably really want to believe that they’re getting some rights when they get a Creative Commons “audio” license. Pauvre petite, you get what you pay for! Or maybe you don’t.
In any event, while all the in-house lawyers will be nervous about changing their forms in case it might show that they were not confident in their rights, it’s probably a good idea to include a Creative Commons disclaimer in any situation where you are acquiring rights, or in any co-writer agreement (or joint administration agreement).
While we can all come up with our own language, it seems that such a disclaimer should include at least the following:
An express representation that the author has not previously granted or purported to grant any rights under a Creative Commons license;
An express representation that no prior versions of the work created before the rights grant was executed were made available under a Creative Commons license;
A promise that the author will not grant or purport to grant any rights under a Creative Commons license in the future, or will not do so with respect to the particular work;
An agreement (most likely between authors) that neither author will ever grant any rights under a Creative Commons license; and
If a songwriter agreement, and agreement by and/or between or among the songwriters that they will not purport to grant any rights in the sound recording, including by means of a Creative Commons “audio” license.
There is some overlap among these points, but each is worth thinking about and seeing if it could apply to your situation.
I would also point out that many of these issues apply to visual works, audiovisual works, screenplays, books, articles and other works of joint authorship.
Or as Dr. Eric Twit of Goggle would say, “Friends don’t let friends innovate with cloudy rights.”