Wednesday, January 7, 2009

Sita Sings the Copyright Blues

Via Alan Wexelblat of Copyfight comes the sad tale of an animated film called Sita Sings the Blues, which IMDB describes as "An animated version of the epic Indian tale of Ramayana set to the 1920's jazz vocals of Annette Hanshaw." Roger Ebert is entranced by the film, and I have no reason to doubt his artistic judgment. But the film apparently can't get distributed, according to,
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).

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.

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.

But let's unpack what actually happened here. According to, 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 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'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 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 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 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.


  1. This is a poignant and moving story of artistic struggle. I'm going to make a movie out of it called Nina Sings the Blues. For the rights, I will pay Ms. Paley squadoosh.

  2. Nina address your comment of checking out the licensing stuff before not making the movie in comments 8 and 13 on her on blog on the post from Aug 26, 2008.

    The reason Nina can show promotional films without any problems is because it's part of the step-deal worked out between her and the companies. She's paying the flat $50,000 licensing fee to start with. This fee goes up from there based on the proceeds at the box office and the number of DVDs/Downloads/On-Demands sold. Promotional views are exempt from being counted in these step-ups. If she shows the film 10,000x "promotionally" and doesn't charge a dime for it, the companies don't get any more money. The giving away would theoretically fall under the same "exemption" as the promotional.

    I don't think it's fair to compare IP licenses to a physical good like a BMW. What BMW chooses to charge for its car is directly related to how much it cost them to develop and make that particular car. How is this amount of money related to the investment by these companies in these songs? Once BMW sells that car, it cannot sell the same car again. For the publishing companies to come to a reasonable agreement with Nina (she offered them a %), it would increase the value of their property by getting it more attention, not remove the property from their possession all together, as with a physical good.

    And a long forgotten, rusty, BMW sitting in some junk pile somewhere would not be sold to anyone for $50,000. (Some of the publishing companies actually destroyed their masters of these recordings for scrap metal!)

    I understand that the publishing companies own rights in these songs and these rights entitle them to payment for use of what belongs to them. Nina understands this too. The problem is that these companies are demanding more than half the budget of the entire film. I.e. The rest of the world (outside the industry and not used to counting in millions) sees it as UNREASONABLE. In a time when the general populace already feels under constant attack by the music industry, is fighting for what's peanuts to them and elephants to Nina really the best move?

  3. We're just dealing with very different worldviews, I think.

    It's no coincidence that copyright law was devised only after the printing press had been invented: copyright was intended to support and regulate the printing industry, and only secondarily to support the act of creation itself (which is why it does such a poor job of that).

    Now we have a worldwide, zero-cost copying and remixing machine. It's only logical that a legal system designed around the physical limitations of the printing press is starting to be questioned.

    You're right that we're arguing that artists shouldn't have to ask permission. Why should anyone get a monopoly on a creative work? If someone can do something beautiful with some old songs (or new songs), they should be allowed to have a try. Note that Nina is perfectly happy for people to do the same with her film, as she's said many times.

    The argument that because it's the law it must be right is circular. Nina (and others) are saying it's a bad law. That's a question that can only be addressed on its merits. The fact that it is currently a law does not make artistic suppression any more palatable.

    Remember the issue here is not attribution: Nina's not stealing credit for the music, and in fact is careful to credit the original composers and performers. No one is under the impression that Nina Paley wrote or performed these songs. The issue is expressive freedom: should anyone have a monopoly on the right to remix creative works?

    Copyright says "Yep". A growing number of artists are saying "No!", and as they don't need publishers to distribute their work any more (because they have an Internet), it's only a matter of time before this civil disobedience results in the laws being changed.

  4. Thanks to Mr. Fogel (president and secretary of for his comment, which is admirably clarifying. It's now crystal clear that this dispute is not merely a quibble about the price of a synch license. Rather, Mr. Fogel simply does not believe that "anyone [should] get a monopoly on a creative work." In other words, no copyrights (legally granted monopolies) for music, film, TV, books, paintings, sculpture, etc. He and his allies are certainly free to argue that position, but let's not sugarcoat what a radical departure from centuries of law (and artistic development) that would represent.

  5. Her blog is revelatory:

    '“But Nina, how will you make money?” The way artists always make money: donations, commissions, grants, patrons, speaking fees.'

    Exactly. By all means, don't make art that people will actually pay to see/hear/read. Just do whatever interests you and then beg beg beg for cash.

    Next time she should just write her own songs--according to her, that kind of "art" is far too simple to merit compensation.

  6. I think I didn't make myself sufficiently clear in my posting. I don't think that anyone should be REQUIRED to license, nor do I think that Paley has any automatic rights.

    What I think is that the people who hold those particular copyrights are making a horrible business decision and as a result they are destroying the things they're supposed to be protecting.

    That was my reason for starting with Ebert's quote - I guess I didn't tie up the argument well enough. The fact that the performances are 80 years old is indeed relevant because at present they're obscure and the rights are making ZERO dollars. Nobody hears them and there no revenue opportunities.

    Now Paley has created a film that could be a golden opportunity and might turn an obscure and unused work into a chance for making real money. But instead of looking at this as "how can we make money here" the holders of the performance rights are looking at this as "we insist on being paid this amount right now even if it kills our future revenue stream."

    That's short-sighted and bad business. It is, effectively, destroying their own property. The law may give them that right, but it's still stupid.

  7. Ben Sheffner,

    Merely calling an argument "radical" doesn't address its merits. Do you consider copyright itself to have been a "radical departure" from previous practice, when it was first devised? It was, after all.

    When circumstances change, laws need to change too. Copyright, as currently structured, makes no sense in the age of the Internet.

  8. @DrWex
    Are you suggesting that we make it illegal to be stupid or destroy your own stuff?

    Also you seam to think that any profit is better than zero in any case, this is not always the true.

  9. To DrWex:

    You say, "at present [the compositions are] obscure and the rights are making ZERO dollars. Nobody hears them and there no revenue opportunities." How do you know that? Do you have any information at all on the publishers' history of licensing these compositions, or related financial information?

    That's a serious question, because your argument appears to rest on the premise that the publishers could be making money here, but for some irrational reason are refusing to do so. Say what you will about music publishers, but one thing is certain: they want to make money, and there would have to be very good reason for them to leave money on the table here. One possible reason is that they do not want to dilute the value of the compositions by licensing them to Ms. Paley at low rates, thereby signaling to other potential licensees (who could afford more) that they can get them cheaper. Another is that they may not want to do business with people who compare them to ear-chopping Brazilian kidnappers.

    Nowhere in all that I have now read about this issue have I heard the music publishers' side of the story. Frankly, having read Ms. Paley's screeds, I don't think it's wise to rely only on her version of events. Without knowing the publishers' version of any licensing negotiations, I don't think it's remotely fair to conclude, as you do, that their decisions were "horrible" and "stupid."

  10. To Mr. Fogel:

    You are correct that "Merely calling an argument 'radical' doesn't address its merits." My point in using that word was to stress that Ms. Paley and her allies aren't merely quibbling about the price of some synch licenses; rather, they seem to think that they should simply be able to use the songs for free, lest her "artistic vision" be crushed. Whatever the merits of that proposal, it's a major -- even "radical" -- departure from current law.

    I certainly don't claim to be a historian of copyright, and I concede I'm not qualified to speak to its early origins, so I'll leave that question alone.

    As to whether "Copyright, as currently structured, makes no sense in the age of the Internet," that's a bigger topic than I'm willing to tackle in a comment here, but I will simply point out that Ms. Paley's problems have nothing to do with the Internet, and everything to do with her failure to obtain the proper licenses *before* making her film. She would have faced the same problem she's facing today had she made the film before the Internet was ever conceived.

  11. Glad you looked at Nina Paley's blog, even if it made you think worse. At least you've heard her side of it.

  12. What I'd really like to hear is the music publishers' side of the story. I suspect that their version of events will be much different from Ms. Paley's -- and enlightening.

  13. If you want to hear the music publsihers' side of the story, why don't you ask them?


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.