because of music licensing issues: the film uses songs recorded in the late 1920's by singer Annette Hanshaw, and although the recordings are out of copyright, the compositions themselves are still restricted. That means if you want to make a film using these songs from the 1920s, you have to pay money — a lot of money (around $50,000.00).Wexelblat calls the situation "ridiculous" because writer/director/animator Nina "Paley has created a wonderful work," that he apparently believes should be able to be distributed, copyright issues notwithstanding. In this interview, Paley attacks "big media corporations" that "believe that they own culture," and she claims that she's doing nothing more than "taking ideas that are already there." She even compares the "big media corporations" who have the gall to demand that they be paid for use of their copyrights to "fundamentalist Hindu nationalists" who want to "hang" her for apparently offending their religious sensibilities.
It's a classic example of how today's copyright system suppresses art, effectively forcing artists to make creative choices based on licensing concerns rather than on their artistic vision.
But let's unpack what actually happened here. According to QuestionCopyright.org, Paley "pour[ed] three years of her life into making the film" -- and apparently only then did she discover that the music publisher(s) would charge more than she could afford to pay for a licence to use the compositions she wanted to form the soundtrack to her work. Mind you, as QuestionCopyright.org says, these compositions weren't inconsequential background music; rather:
The music in Sita Sings The Blues is integral to the film: entire animation sequences were done around particular songs. As Nina says in the interview, incorporating those particular recordings was part of her inspiration. To tell her — as many people did — to simply use different music would have been like telling her not to do the film at all.To which I would ask: if you're going to spend three years of your life making a film of which the music is such a vital component, don't you think you'd make 1000% sure you had the rights to the music before you embarked on your filmmaking journey? [See update below.]
Wexelblat also quotes with approval QuestionCopyright.org's lament that this episode is "a classic example of how today's copyright system suppresses art, effectively forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." Well, I'm no fan of "suppress[ing] art," but the alternative Wexelblat and QuestionCopyright seem to urge is that one should simply be able to use others' music in a film without permission, and apparently without payment (or maybe at some government-mandated price that the filmmaker can "afford") -- which would be a radical departure from the copyright law of every developed country that I know of. Yes, it's true: filmmakers (and other artists) have their "artistic vision" tempered by "licensing concerns" every day. If I want to stage a musical using Beatles tunes, I have to pay the label and the publisher. If I want the services of the best set-painter in Hollywood, I have to pay the painter the prices he demands. If I can't afford the fees they ask, my artistic vision is crushed. And despite what Ms. Paley says, she didn't want just to "tak[e] ideas that [we]re already there" -- she wanted to take the creative works that composers and songwriters with their own "artistic visions" had toiled to create themselves.
(And before anyone pipes up that the problem here is the length of the copyright term: reasonable people can disagree as to the proper length of the term, but I don't think the issue here is the term at all. The "problem" that Wexelblat and QuestionCopyright.org and Paley seem to think exists is that the publisher is asking too much money for a licence. But that could happen whether the compositions are 80 years old or 8. They simply think that a filmmaker in Paley's position has some right to a licence at a price she can afford, rather than at the price the copyright owner wishes to charge. That "right" simply doesn't exist in the law; nor should it, any more than my "right" to the new 6-Series I'd like at the price I can afford, rather than the price BMW chooses to charge.)
Lastly, Wexelblat writes:
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 archive.org 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.Maybe I'm missing some key facts, but this is just incoherent. If Paley's film contains the songs for which she hasn't obtained proper licenses, copyright law prohibits her from distributing it or making copies or "uploading" it to Archive.org or anyplace else -- even in "limited number[s]" or for "promotional" purposes. And the reference to Creative Commons makes no sense. Creative Commons provides a number of form "licenses" that copyright owners can attach to their own works to signal to the world how others may use them. But a Creative Commons license certainly can't give a filmmaker the right to use someone else's music in her film without permission. Also, Wexelblat says that Paley is going to "giv[e] away" copies of her film (apparently containing the infringing music). Sorry, but giving away copies of someone else's work without permission is no better than selling copies. Just try the "giving away" defense next time you camcord the latest Hollywood release, stamp out 1,000 DVDs, and pass them out for free on the street.
I don't mean to be too hard on Ms. Paley; by all accounts she's made a great film, and I hope she is able to find a legal way to distribute it. And maybe there are other facts that the sources I've cited don't reveal. But Paley, like everyone else, must obey the law, and pay for using what isn't hers. That, she does not seem to have done.
UPDATE: Thanks to commenter goldenrail for pointing me to Ms. Paley's post explaining why she didn't get the proper licenses before she spent 3 years of her life making her film. I read it. And now I do want to be hard on her! She admits she knew full well that she didn't have the proper licenses, but dove headfirst into her filmmaking anyway:
I was more concerned about the recordings (which through much research found were in fact PD [public domain]) and hoped (not assumed) that payment could be negotiated for the compositions.She "hoped"! But hope is not a method. I fear that all she has accomplished is to provide a case study for a filmmaking textbook on how not to go about making an independent film.
Her post then delves further into the territory of self-important rant. She claims that "most filmmakers" just make "pile[s] of shit," speaks of her "infinite contempt" for the "film business," and analogizes music publishers to Brazilian kidnappers who cut off the ears of their victims. (Seriously. Read it.) No wonder the publishers weren't willing to cut her a break.