My colleague Ren just pointed me to an interview (How did Mad Hot Ballroom survive the copyright cartel?) this past summer in Stay Free! Daily with the makers of Mad Hot Ballroom about the atrocious money-grubbing tactics of copyright owners when low-budget documentarians try to clear even inadvertent use of material:
Stay Free!: There's a scene where a woman's cell phone rings and she has the "Rocky" theme ring tone. I noticed that you even cleared that! I would have thought that could be an example of fair use.
Sewell: I thought so too. It's only six seconds! But our lawyer said we needed to clear it. So I called Sprint, which owns the ring tone master rights, and they gave it to me for free because they saw it as product placement. But then I called EMI, which owns the publishing rights and they asked for $10,000. I said no way--even the classics weren't getting that much. Luckily, we were able to get it for less.
Stay Free!: How much did it cost for the average song?
Sewell: It depends on how many entities are attached to it. Our typical total cost for a classic was about $15,000-20,000, split between publisher and master rights. With the Rocky theme, the publishers didn't want to overexpose the song. That was the issue with Ray Charles' "Hit the Road Jack" as well.
Stay Free!: There was also a scene with a TV on, and a commercial was on the TV. Did you clear that?
Sewell: That was unidentifiable, so we had to run it by another lawyer for our errors and omissions insurance. (You have to buy insurance to cover all the things in the movie that might be subject to legal questions.) Our lawyers and the insurance agent agreed that it was fair use, though, because it was unidentifiable and on the screen for less than 10 seconds.
Stay Free!: Were there any other inconvenient clearances you had to deal with?
Sewell: Well, we had to watch out for billboards and Frito-Lay trucks all the time. But I usually didn't care, we would just shoot. The biggest danger with clearances is when they interfere with documenting real life. Something spontaneous like a cell phone ringing is different than a planned event. If filmmakers have to worry about these things, documentaries will cease to be documentaries! What happens when the girls go shopping and there's music playing in the stores? We were lucky because in our movie the music wasn't identifiable, but otherwise what are we supposed to do: walk up to the store manager and say, "Excuse me but can you turn off your radio?"
Stay Free!: Were there any scenes you had to cut out of the film because of copyright?
Sewell: When we were down shooting the boys playing foosball, Ronnie yelled out, "Everybody dance now!" Just when I think we've finished the film, someone points out that we have to clear that because it's a "visual vocal cue." So I went back to the publishers, and the first publisher, Spirit, says they'll throw it in with the other things we've cleared if Warner Chappell throws it in. But Warner Chappell said, "Look, we've cut you some nice deals, we can't give this to you." They said this three-second bit would cost $5,000. And since they had Most Favored Nation status it would have raised the cost on similar uses, like the Rocky ring-tone. So I went back to lawyer and said we should keep it in because this should be a poster child for fair use. But he didn't recommend taking on the music industry. Those corporations have too much money for us to play Norma Rae our first time out.
Stay Free!: You guys should have done it and then gone to the EFF if Warner Chappell threatened you. For a clear fair use like this, lawyers are often willing to work pro bono. And the negative publicity would have scared Warner Chappell off.
Sewell: Yeah, I know, but more than anything else, it's the fear factor. That's what's discouraging.