LawGeek

Stay Free! Daily: How did Mad Hot Ballroom survive the copyright cartel?

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.

Donnie Darko vs. Alyssa Milano's Mom

So I watched Donnie Darko on DVD this weekend. It's a weird cult horror flick about a high school kid who has visions of the future and is tormented by an imaginary six-foot tall vamped-out rabbit named Frank. Good, but weird, as you might guess.

Anyway, after the movie, I flipped through the "deleted scenes" segment of the Special Features. The first scene is called "Married with Children." In the movie, Donnie goes to see a therapist. In therapy, he admits that he fantasizes a lot about girls and specifically about Christina Applegate from Married with Children. The delete scene is all of 15 seconds long. It shows Donnie sitting in a chair, watching Married with Children. Christina Applegate appears on screen for a total of six seconds.

Along with the deleted scene is commentary from the Writer/Director, Richard Kelly. In the commentary, he says "In the original script, it was Alyssa Milano that he fantasized about. And when we tried to clear Who's the Boss for legal, her mom kind of.. threatened to sue us, so we went with Christina Applegate in Married With Children instead."

Six seconds of footage and they get threatened with a lawsuit. Wow. So much for fair use and the right to comment publicly about celebrities.

Copyright Horror #1: The Ghost of Joyce's Past

So, much like Silly Internet Patents, I've decided to start a list of Copyright Horrors -- uses of copyright law that horrify me. I feel like we hear about these kinds of stories now and again, but they soon fade from memory or become lore that is often mistold or misremembered. So I've decided to start documenting them here. Maybe if the list becomes long enough, we'll see some change in the law.

Anyway, here's entry number one:

Lessig points to a note about James Joyce's estate threatening to sue people in Ireland (including the government) for trying to read Joyce's books outloud in public:

According to an article in the Irish Times (registration required) the Joyce estate has informed the Irish government that it intends to sue for copyright infringement if there are any public readings of Joyce's works during the festival commemorating the 100th anniversary of Bloomsday this June.

James Joyce died in 1941 and the copyright in his work expired in 1991. Then the EU extended terms to life+70 years, and the work went back into copyright in July 1995. The estate has been very active in enforcing their copyright, suing regularly. While some of their actions have been aimed at issues such as protecting the memory of Joyce's daughter Lucia from scrutiny, other suits have been against non-commercial uses of the works by fans. As such, they seem solely concerned with the financial health of the estate [admittedly one of their roles] having no concern for nurturing the greater cultural legacy of Joyce.

The Irish Times notes that "In 1998, the Joyce estate objected to readings of Ulysses live over the Internet, which was facilitated by Ireland.com. The case was settled out of court." Now the estate has issued a letter to the Irish government warning that all use must be cleared with the estate - which means that there can be no public reading during the festival, and a planned production of Joyce's Exiles by the Abbey theatre must be cancelled.

Not only is this pretty offensive toward the goals of cultural awareness and education (aren't we trying to encourage people to read more?), but this is part of the harm that comes from copyright term extension. These works used to be in the public domain, freely accessible and owned by the public as part of the quid pro quo of copyright law. But now they are being sucked back into the estate's coffers and being used to squelch public education and enjoyment of Joyce's works. A sad commentary on the legacy of one of the world's great artists.