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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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January 7, 2009

Copyright Owners Contributing to the Destruction of Their Own Property

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Posted by Alan Wexelblat

Everyone else is writing about Apple's iTunes music store going DRM-free. Which is, I admit, an interesting move. It's also interesting that they're moving to a 3-tier pricing scheme, after about six years of the Cartel nagging them to break the 99-cents-for-anything barrier.

But like I said, everyone's writing about that. So instead I want to blog about something else. I want to blog about how Roger Ebert, who makes no small amount of money himself from copyrighted works, ended up writing

Don't the copyright owners realize they are contributing to the destruction of their property by removing it from knowledge?

The particular item in question here is an independent film called Sita Sings The Blues. The film itself is a bit complex to explain, so it's probably best if you read Ebert's blog post about it yourself.

Go ahead, I'll wait...

Right, so the thing that makes this Copyfight material is that this indie film, which delighted one of the country's best-known film critics, can't be distributed because it uses eighty-year-old recordings. According to Paley's own blog entry the original request from the copyright holders was for $220,000. That may not be much for a major motion picture, but for a self-made indie film it's a show-stopper.

As questioncopyright puts it, this is ridiculous. Even at the now-reduced price of $50,000 the owners of the copyrights are "forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." This is not hyperbole - as Paley describes in the interview there, the specific music she chose was integral to the film's production. Animation sequences were created around specific songs, and that's part of what Ebert found attractive.

By any measure of artistic judgement, Paley has created a wonderful work. But she's never going to be able to turn that work into a commercial success. Because even after she finishes paying the 50k (on top of $10,000 in lawyer fees so far) she'd be facing a fee schedule that would in effect make sales of the film a losing proposition. By her calculations if she somehow managed to take in $1,000,000 in theatrical receipts she might get between $30,000 and $80,000. Which brings me back around to Ebert's original point - by being greedy and grasping, the copyright holders are destroying their own property.

My guess is that it's safe to say you've never heard (or even heard of) Annette Hanshaw. She was, apparently, quite a remarkable singer some 80-90 years ago. But she's gone and largely forgotten. Now imagine if a film built around her songs had been distributed, and had gotten even moderately popular - would you regard that as a sales opportunity? A chance for a revival, a reissue perhaps? I certainly would. Remember what Belushi and Ackroyd did for much better-known blues artists by using their music in the Blues Brothers films?

Apparently I'm a bad person to hold copyrights because I see things this way. Apparently in the modern way to do things is to create "a barrier between artists and audiences, prohibiting access rather than facilitating it" as Paley says. This reminds me of the massive effort in 2007 to strangle Web radio in its crib by imposing impossible fee structures.

To her credit, Paley isn't willing to give up. She's put together a distribution plan that revolves around creating a limited number of promotional copies and then uploading those to under some kind of Creative Commons or similar license. From there, she's going to make money by giving it away, and profiting from related things like donations, sponsorships, ancillary products. Shades of Cory Doctorow's "Giving away my books is selling the hell out of them."

Paley admits she's probably never going to make back the money she's invested in this project. She's actively looking for sponsors, legal help, and hoping that all the various rights holders will agree to the 50K plan and that she'll be able at least to repay the loans she's taking out to make this all happen.

Comments (12) + TrackBacks (0) | Category: IP Markets and Monopolies


1. Copyrights & Campaigns on January 7, 2009 7:54 PM writes...

Thought you'd be interested in my take:

Permalink to Comment

2. goldenrail on January 8, 2009 1:26 AM writes...

Glad you're helping to get the word out. Copyrights & Campaigns does have an interesting perspective on this (if a little archaic and industry-focused), but I think I have to agree with you: "the copyright holders are destroying their own property."

It seems long-existing copyright holders whose entire business models are built on capitalizing on intellectual property rights through licenses and such can't recognize when it's in their best interest to cut a deal and invest in something that will bring them more in the future. Sort of pay-it-forward in a money grubbing way.

Incidentally, I've noticed a lot of sites that offer Annette's recordings free. The recordings are, after all, in the public domain. Would the publishing companies make any money on new sales of Annette's records? Or perhaps would they be able to get some big bucks out of covers and remakes, making the songs themselves and not just Annette's versions popular again?

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3. DrWex on January 8, 2009 11:23 AM writes...

As I understand it the copyrights still in force are not on the songs themselves, but on the particular performances. So to make money the copyright holders would need to issue something like a CD of those particular performances. To my mind that suggests something like a soundtrack CD for Paley's film. I'm sure more creative people could come up with ways to make money off these songs if they got popular (ringtones, maybe?)

I don't think it's possible to make money off the songs directly but your notion of a covers CD seems like a good one. Those would be new performances and have new rights.

It's somewhere between a shame and just disgusting that they'd rather kill creative uses than put energy into figuring out how to find revenue. Contrast that with Paley's plan, which I find has several potential options for revenue generation.

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4. sgaana on January 8, 2009 1:13 PM writes...

Thank you for writing about this. I've been following "Sita" for a long while now, and this entire controversy just leaves me dumbfounded. Like you, I don't understand why the owners of the copyright don't see this as a massive business opportunity. Hanshaw's music is not making them money right now, and hasn't been. But this film project is so quirky, colorful, energetic and appealing that it seems a likely gamble that its wider distribution would bring a lot of publicity to Hanshaw's catalog. From there it seems like a no-brainer to say, "fine, you distribute the film; you don't get to put out a soundtrack for it, though; we do". Just being able to put out a greatest-hits compilation of Hanshaw's music with a prominent notice on it saying "As heard in the critically-acclaimed 'Sita Sings the Blues'!!!" would seem worth it -- especially as it's Paley and the film's distributors who would be doing all of the publicity that would at the same time bring the music to the attention of the potential audience (not to mention helping to create that audience).

I just do not understand it.

Permalink to Comment

5. Nina Paley on January 9, 2009 3:38 PM writes...

Thanks all. One clarification:

As I understand it the copyrights still in force are not on the songs themselves, but on the particular performances.

Actually the recordings are not protected by federal copyright (they were never renewed) but the compositions (sheet music) underlying them are.

Permalink to Comment

6. DrWex on January 12, 2009 9:50 AM writes...

Thanks for the clarification. I'm curious how you found out the copyright situation on the songs?

Permalink to Comment

7. Jim A on February 27, 2009 11:17 AM writes...

"forcing artists to make creative choices based on licensing concerns rather than on their artistic vision."

--Really, isn't that to be expected? Carmakers have to consider the costs of their parts when designing cars, is there anything wrong with IP workers from doing the same?

Permalink to Comment

8. FXK on March 3, 2009 11:37 AM writes...

Nina, Too bad copyright and fees got in your way of making your film, your art. But wait! Those things did not get in your way! You made your film. You even screened it and got multiple awards for it! Congratulations on a job well done! Now, your art and recognition is complete.

Oh, you want to distribute it, too? You say it costs too much? This is no longer about expressing your art, it is about how to make the cash register sing. There are a lot of folks out there with grand ideas, business, music, art, whatever, that do not have a good business model, and the project fails. Oh, but you are so close.

Get your award-givers to cough up some money. All those folks who think the film was wonderful. All those folks who think you are wonderful. Your daddy and mommy. Get a loan.

Whether the copyright holder is cutting their nose off to spite their fate is irrelevant. Whether the movie will spark new interest in the movie is irrelevant. Whether their business model is right or wrong is irrelevant. It is fact. And you, yourself, said as much as your success depends upon them.

Gee. Wouldn’t it be nice if copyrights were like patents? Well, they’re not.

All that said, I hope to see the film – and I’ll pay the exorbitant box office fees to see it. If you want to make money, spend some.

Permalink to Comment

9. Nobody on March 7, 2009 3:11 PM writes...

"Carmakers have to consider the costs of their parts when designing cars"

Car parts have a nonzero marginal cost of reproduction. Someone has to pay for that cost. On the other hand, to build on existing work in literature, film, or whatever costs nothing. Information is a nonrival good.

Permalink to Comment

10. Nobody on March 7, 2009 3:16 PM writes...

"Oh, you want to distribute it, too? You say it costs too much? This is no longer about expressing your art"

Sure it is. If nobody much sees it, it hasn't been expressed to very many people, now, has it?

"Gee. Wouldn’t it be nice if copyrights were like patents?"

No. It would be nice if copyrights went away.

The problem here is that the price asked Nina to distribute her film has been artificially inflated far above the actual parts-and-labor cost of distribution.

Nobody is suggesting that marginal work be done without marginal pay here. Only that monopoly prices not be charged, speech not be muzzled in the name of almighty corporate profits, and people not get paid over and over again for work they did just once in the past.

P.S. why isn't "remember me? Yes" having any effect?

Permalink to Comment

11. San Diego Workers Compensation Attorney on March 9, 2012 2:48 PM writes...

The recordings are eighty years old...that's practically antique in the film industry.

Permalink to Comment

12. San Diego Work Accident Lawyer on June 16, 2014 12:47 PM writes...

"Even at the now-reduced price of $50,000 the owners of the copyrights are "forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." I couldn't agree more - copyrights are ruining the authenticity arts and limiting the capabilities of the artists.

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