The Licensing Plate: 10 Music Licensing Tips for Producers of Independent Films

A site called The Licensing Plate has an excellent list of tips for independent filmmakers to help them avoid the situation in which Nina Paley finds herself: her film completed, but unable to get distribution because she hasn't cleared the music, and reduced to pimping herself out (metaphorically, to be sure) via eBay.

In a nutshell, The Licensing Plate urges filmmakers to behave like responsible adults rather than spoiled brats who whine about their "artistic vision" being crushed when they can't reach a deal with the owners of music copyrights. Among the tips: plan ahead, don't fall in love (with a particular piece of music), and ask questions. My personal favorite:

Licensing People Are People Too: And finally, the people who work in licensing departments at music publishers and record labels are not out to make your life miserable. I know a lot of them. They’re good people. But like the rest of us, they have jobs to do and bills to pay. And their job is to make money for their company and their artists. That’s what they get paid to do. It is how they earn a living. They realize that you are self financing your film and they will do their best to work with you. They would rather have your money than have nothing. Try not to yell.

Read up, Nina.

Nina Paley pimps herself out to pay the publishers

Well, I gotta hand it to Nina Paley, the filmmaker whose animated Sita Sings the Blues is sitting in "copyright jail," unable to find distribution, because Paley can't afford to license some music she considers crucial to the film. I've been critical of Paley's views of (actually, contempt for) copyright, and for the way she made her film first, and only then turned to clearing the music. But I must admit her latest scheme to raise money to pay for the necessary synch licenses is pretty ingenious. Paley is selling herself on eBay. Technically, she's only selling a chance to sit next to her at the Feb. 21 Film Independent Spirit Awards in Santa Monica. Bids (none as of yet) start at $1,000; Paley explains the details:

The lucky winner will get to prance down the Red Carpet with me (photographers! paparazzi! none of whom will know who the hell we are because they all want photos of movie stars), eat whatever they serve for lunch, drink the booze that inevitably flows freely and at film events (I personally don't drink, so if you're sober at least you'll have me to talk to), clap politely, and listen to me yak on and on about copyright reform and freedom of speech. Optional: pick me up from my friends' house in Glendale (because I don't drive - I'm a New Yorker!) and enjoy VIP valet parking!

I doubt Paley will raise the $50,000 she says the publishers are demanding for use of their songs. But at least she now seems to recognize that if she wants to use others' music in her film, she has to earn an honest buck, and take out her checkbook. Good for her, and good luck.

(h/t Wired)

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...

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 QuestionCopyright.org,

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 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.