You know you're in trouble when you're too far to the copyleft for BoingBoing...

BoingBoing.net is "a directory of wonderful things." It's also a festering den of copyleftism, which boasts excitable anti-copyright activist Cory Doctorow as one of its co-editors. A few days ago Doctorow posted about the saga of Nina Paley, the animator who spent three years of her life making a film called "Sita Sings the Blues," only to find that she can't distribute it because she failed to obtain rights to certain music she considers vital to the soundtrack of her work. Of course, as I pointed out, and as Paley herself admits (see comment #8), Paley didn't bother to try and secure the necessary music rights until after she had already made her film -- a move no one with the slightest experience in filmmaking -- let alone a modicum of common sense -- would advise.

To no one's surprise, Doctorow uncritically takes Paley's side, lamenting the "the heartbreak of having to strangle her acclaimed art." What is surprising is the reaction of the BoingBoing commenters to Doctorow's post. To be sure, Paley has plenty of defenders ("Leak it on bit torrent.... And screw the company that owns the rights to the music.") But there are also a sizable portion who buck the tide to say, in effect, "Listen, lady: quit your whining. If you want to use someone else's music, do the right thing and pay up. And next time, negotiate for the rights before you spend 3 years making a movie." A collection of the choicest comments:

• You'd think she'd have done a little research first.

• As a director and musician myself, this story frustrates me so much since she didn't secure rights for the music from the get go. If it is something that is such an important part of the story she wishes to tell, it is her responsibility to clear it. That's it. Nobody forced her to use the audio she did.

  ***

  And can we stop with the "but the artist will get free exposure" nonsense? This is an all too common insult artists are continually faced with.

  All motion artists deal with this issue of securing rights if they wish to use somebody else's work, like synch rights for audio. She is not unique. And, her problem is a rather amateur one.

• She would have been smart to negotiate the deal before starting work. Now that's it's a huge success, the value of the music has gone way up.

  Negotiate your prices before you create the value, that's just common sense.

• There are good arguments for liberal fair use policies in copyright, such as when you want to create a mash-up on youtube. This is not one of those cases. If you want to create a commercial product, which is what she wants to do, she needs to pay the creator (or their estate) for the work she wants in use. I agree with [a previous commenter] that it was an amateur move not to secure the rights first, when they might have been cheaper or she could have chosen other songs.
• I agree it may be very short-sighted for the copyright owners to insist on a high fee, or any fee at all if the film might mean more song sales down the road, but that is their decision to make.

• She should have asked first, no question. Sounds like she didn't pay attention to all her classes in film school.

  I'll bet she's not going to hand over the film to public domain or a CC license - she's going to try to make money. She respects her own right to profit from distribution, but nobody elses'?

  Sounds like an artist.

• I don't think the issue is copyright issues suppressing art - I think the issue is she should have done her homework. I'm a short filmmaker who's been to and in lots of fests, and part of the deal is being responsible for what you use in and on the film. It's too bad she chose to base her film on the music and either ignore or be ignorant about the artistic and actual costs of what she was using. You snooze you lose. Distributors need legal clearance on everything, even showing a sliver of a logo or brand needs permission and that stops a lot of films from being distributed because the filmmaker wasn't responsible enough to figure it out.

  Also I get the feeling that people think it's "ok" that she did this because her film is "good" which is subjective and silly - what about all the things on youtube that are made without permission from copyright holders? Shouldn't they get this kind of sympathy too?

• So, how about I just take her animation and write my own music to go along with it, and show it at animation festivals, and then whine that she won't give me clearance?

• I'm a composer and musician. I have had a few instances where professional independent film makers have used my music in a rough cut of their movie, then ask my permission after the fact to use the music for the release. This is totally backwards. When I quote a license fee, they act as if I am somehow the bad guy. What they say is, "I'm just a poor artist trying to realize my vision." Jeez. Welcome to the club. I'm just a poor musician who doesn't work for free -- when did I agree to donate my services to the amateur film industry?

  It's my business how much I want to charge for a license -- you can reasonably argue that the "exposure" is worth taking a smaller fee, but the point is that it's my decision -- there is no inherent "right" to use my music just because you disagree with my business decision.

  Furthermore, this "exposure" argument is not relevant for someone who relies on license income. I mean, what does exposure get me? I'm not a touring band, I'm a composer. So maybe "exposure" gets me another licensing deal in the future -- should I not charge for that one either, because that is also "exposure?"

  Forgive my rambling, but these cries of "unfair" always come from people who don't respect the rights content creators. We're not all big corporate monoliths.

• Sorry Cory, normally I can get behind you on these sorts of issues, but not on this one. I agree with the commenters who have pointed out it was perhaps shortsighted to base a work around a piece of music for which she would not be able to obtain rights at a reasonable cost. To then cry about that cost and to state that it's somehow preventing the release of her work is really quite absurd.
• I'll have to pay $13.75 for a ticket at an art house theater it plays in. She won't be handing out free tickets will she?

• I'm failing to understand why on the one hand Nina says the specific music is so important to the film (which it is) and on the other hand isn't willing to pay those artists for their work.

  ***

  I also feel that her tactic of loudly complaining to the public rather than trying to negotiate further with the master owners and music publishers is a bad move. I think she should have gotten an experienced music clearance person to help her out here - no publisher worth his or her salt is seriously going to quote $16,000-$20,000 for a use in a small budget short animated film.

• As an artist, (oil painting), I have to side with the owners of the old copyright. You can't just use something for fun or profit and hope for the best. The reasoning for someone still owning the rights is because the family of the artist should be able to benefit from their creative effort and the law grants these rights for 80 years after the death of the artist in most cases.

  This internet generation is happy to cut and paste anything they can find out there and call it public domain. That's why lawyers still make lots of money.

  The anger in this thread about how unfair the system is treating the artist/film-maker is pretty funny to see. What about the poor artist, song writer who wants to support their family.

Which gives me hope that all is not lost...