Okay, reliable sources are indicating to me that this take on music licensing is all wrong. In fact, "the bulk of music publishers' money comes from 'mechanical royalties,' which are essentially standardized licensing fees (set by a federal administrative court) that the publisher receives every time a writer's song is sold in some form. Which is to say: When your commenter says publishers 'won't see a dime' if a writer's song sells a ton of copies, he's got it precisely backwards. That's where a huge chunk of their money comes from."
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Licensing Again
08 Jun 2007 08:18 am
Comments (50)
"I have no idea if the previous take on licensing was wrong or right. But I will say it's irrelevant to the issue of being able to distribute Killer of Sheep."
To expand slightly, the problem was always money, not the music rights system. No one would come up with the money for the music rights because they didn't think a theatrical distribution would make back enough dough to make it pay off.
Normally, "no budget" movies don't use music that needs to be cleared for this precise reason.
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A somewhat similar case is that of the sublimely wonderful Two-Lane Blacktop from 1971.
The movie uses a lot of popular music, and while it was cleared for theatrical distribution, they could never get the rights for home video / cable distribution until the late 90's.
Check out this passage from a story about the movie:
But efforts to release the film had always stalled, mainly over what the Girl calls the "groovy tunes" on the soundtrack.Among the biggest stumbling blocks was the Doors' "Moonlight Drive," which is prominently featured in one scene. Director William Lustig, who also serves as "technical advisor" for Anchor Bay, recruited Hellman to approach the surviving members of the Doors. "Without the moral support from the artists who made the film," Douglas said, "they would have turned us down."
sublimely wonderful
[whinny]
"Among the biggest stumbling blocks was the Doors' "Moonlight Drive," which is prominently featured in one scene. Director William Lustig, who also serves as "technical advisor" for Anchor Bay, recruited Hellman to approach the surviving members of the Doors. "Without the moral support from the artists who made the film," Douglas said, "they would have turned us down"
And just to expand a bit more in case the above isn't clear...
Licensing a Doors' song to be prominently featured in a movie is extraordinarily expensive. I'd guess it'd cost somewhere around a million dollars.
And that the revenue expected for a DVD release of a 30 year old obscure movie is minimal, only the Doors' willingness to forgo their normal licensing fees made the DVD release possible.
Petey,
Where'd you get the milion dollar estimate? Is that just a wild guess? And is it that high just because it's The Doors?
"Where'd you get the milion dollar estimate? Is that just a wild guess?"
Educated guess. It may be too high, but it's probably not off by all that much.
"And is it that high just because it's The Doors?"
Of course. Wanting to prominently use a Beatles song in your movie is a similar situation.
When I want to make one of my shorts, and can't afford a license, I use another song or buy a different set of rights. This isn't a licensing issues. It's a distribution issue. No one wanted to take a risk with the film, and this is an excuse. Indie distributors take these sorts of risk all the time. All they are saying here is that they weren't willing to do so for this project. Don't buy their rationale.
I've been in the recorded music industry for 12 years, and did licensing for a little more than 5. Sorry petey, but 1 million dollars for a song contained in the film is a pipe dream. Most of the time, even for a hollywood production, you're only talking 5 figures per song. One of those 007 theme songs might cost a million, but that would include the budget for recording the song and paying the artist.
Moreover, the fee is scaled so that a low budget production pays less than a high budget production for the same music. And the fee will also vary depending on the use - lower for just festivals and arthouses, higher for north american distribution, higher still for worldwide distribution.
Keep in mind that there are 2 costs to every license, 1 for the use of the recording (usually paid to a record company) and 1 for the use of the composition (usually paid to a music publisher). It is easy for the lay-person to mix them up, but they are treated totally separately within the industry, even though you need both to put out an album or a film.
One other point- it seems lately people are going from saying copyright law is overly long to using these sorts of example to say one should be able to do whatever one wants with other people's works- am I wrong? Because my thing is- you make is sound like the reason this film wasn't seen was some mean copyright owners when in fact the same laws that protected those mean copyright owners is what convinces distributors to take any risk in distributing our works. I don't see how you can have one without the other. Perhaps you can describe such a system to help me understand why this is a big deal when it's really the price of making sure indie filmmakers like me are able to make a career of this, and that you get to see art at all- much less a specific song done by a particular that you want to hear with a particular scene
"Most of the time, even for a hollywood production, you're only talking 5 figures per song."
I wouldn't argue with this as long as the qualifier "most of the time" is included.
But if you're trying to say that I can prominently use all of Light My Fire or A Day In the Life in my movie for $90,000, I think you're far off the mark in terms of dollars.
"When I want to make one of my shorts, and can't afford a license, I use another song or buy a different set of rights."
But, of course, Killer of Sheep is a very different situation.
The movie is not only already in the can, it's already in the Library of Congress registry.
It's waaaaay too late to decide to use cheaper music.
"One other point- it seems lately people are going from saying copyright law is overly long to using these sorts of example to say one should be able to do whatever one wants with other people's works- am I wrong?"
No. You're not wrong.
There are multiple things going on here. Computer people, (as bloggers are), tend to buy into the "Information Wants To Be Free" bumper sticker without quite thinking it through. And the entertainment industry suits are ready-made villains.
You're quite correct that the anti-IP folks are more than a bit brain-dead, but it's still a quite popular idea in the blogosphere.
You are right. I am not defending the distributors. I am only asserting that the interest of filmmakers aren't generally met in "information is free." This kind of discussion is really about consumers (or end users). They can only point to rare cases where a film, they claim, didn't get distributed.
"You are right. I am not defending the distributors. I am only asserting that the interest of filmmakers aren't generally met in "information is free"
I'm willing to go even further than you. I think when you attack the suits, you're really attacking the artists and their work.
The suits may be sleazy and unattractive, but their sausage-making is essential to the well being of the artists and their work at the end of the day.
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And to be fair, some of the anti-IP feeling in the blogosphere is a reaction to excesses in current US IP law - a feeling I wholly share. I think it's more than slightly wrong that Steamboat Willie isn't in the public domain, for example.
I agree about the excess. No one seems to want to come to a middle ground that maximazes the situation for everyone rather than just particular interests. The response to abnormally long copyrights is not "information is free" it is "we need to return copyrights to more realistic lengths of time." I am not sure what the length is, but I can say that right now they are too long.
You're quite correct that the anti-IP folks are more than a bit brain-dead, but it's still a quite popular idea in the blogosphere.
Petey, who exactly are these "anti-IP" people I keep hearing so much about? Yes, you can find plenty of people who love to quote Stewart Brand without knowing the whole quote writing anonymous comments to Slashdot and what not, but taking them as exemplars of IP criticism is pretty similar to Zagnut's "some people with signs in a protest somewhere clearly mean all hispanic immigrants want to return the southwest to Mexico" nonsense from yesterday. The vast majority of people criticizing the current IP regime take the Lawrence Lessig line of IP reform. Not "anti-IP" but anti-IP uber alles. And if you agree that copyright is too long and Steamboat Willie should be in the public domain, you're actually on the side of the reformers.
"Petey, who exactly are these "anti-IP" people I keep hearing so much about?"
Matthew, for one.
There are plenty of folks in the blogosphere who are apologists for piracy using various tortured rationales. There are also plenty of folks who define "fair use" in ways that seem basically designed to deny the basic legitimacy of IP.
"if you agree that copyright is too long and Steamboat Willie should be in the public domain, you're actually on the side of the reformers."
I'm well aware of that.
I'm definitely in favor of relaxing certain aspects of IP law. But I'm also in favor of strong enforcement of sensible IP law.
At the end of the day, I have little patience for those who don't recognize the function IP serves.
I am not on the same side as someone who questions why people have to pay licensing fees for the rights to place other people's music into films.
I am also not for bait and switch. The same people who make those arguments are the same people with a bootleg copy of my films should I ever become popular. We all know the sites.
I want to make money off my works. If you don't wany to buy it. I can live with that. What I can not live with financially or otherwise is that you have a right to it without paying for it. Some of this is going to happen anyway. I just don't think it should be the law you have the right other than fair use to do so.
The claim here is that Killer of Sheep didn't get distributed because of the music rights issues. Okay, why not use other music?
It's just a bait and switch. It didn't get distributed because the gatekeepers of distribution didn't want to take a risk on the film until now. I think most people know that most films, even well deserving ones, never see distribution. Check out sites like indiewire.com which talk about these films all the time. Artists and filmmakers are principly concerned with a) distributing their works and b) getting paid to make a living at this so we aren't having to have (as I am now) 2 careers (one that pays my bills and provides money for my shorts) and one where I make no money right now at all.
There are problems with copyright law. But these aren't the same as the issue that artists face. Yet, that reality is glossed over in favor of using copyright as the basis of the problem.
Also, Petey is right. I would trust Matthew and others more if they weren't using tortured logic like "see this film didn't get distributed for 20 years due to licensig (copyright law)issues" without a) admitting the structure of the industry (its taste has more to do with it) b) aknowledging that a musician and music companies have a right to obtain some money from licensing music in films c) precisely defining what changes they propose d) do not mix the interests of artists/filmmakers with those of consumers or the distributors e) didn't seem deliberately designed to create propaganda rather than a real discussion.
Matthew, for one.
Matthew's a guy who relies on IP law to pay the bills, so I doubt he's going to be calling for its abolishment anytime soon. Now I'm sure he favors a much stricter level than you, but we're still just talking about degree.
Speaking personally, I most definitly favor very broad fair use laws, and I do think that any IP law regime that prevents by what all accounts is a work of high artistic merit (I've not seen it, so I can only go by what I've read) from being released has some serious problems (George Gershwin is long-dead, and was deservedly well compensated already) But even my favoring substantively weaker IP protections than exist today is not the same thing as favoring no protections. I'd also say that the "threat" of too-weak IP laws is not worth considering. Right now we're far, far more likely to see even stricter laws enacted than ones that are too weak.
Bleh, that should read "a much less stricter level than you." My apologies for any confusion.
Do you know anything about the film industry? Because as I have said multiple times- you and other poster seem to want to us to accept as true that films are not getting distributed because of music licensing issues.
I believe that's what is the tortured logic here. You are doing this to "help" us filmmakers when what you are proposing hurts us.
"b) aknowledging that a musician and music companies have a right to obtain some money from licensing music in films"
This is precisely wrong, and probably the factor that drives me into the almost no IP camp.
IP only has one (legitimate) justification -- that it act as an incentive to creations that benefit the public good.
The argument against IP is that there are other ways to incentivize many of these things, and some of these things have better incentives when money is taken out of it. There is no (legitimate) 'right' to an IP monopoly -- it is granted as a part of a system soley to benefit the public, not the creators - that is a side effect.
Name the ways- and then tell me how I am going to make money off of them as an individual artist. You claimed there were many, but I didn't notice a list of any of them.
Thanks for the theory behind copyright law. Now let's talk reality of life. If people can't make money, they can't support themselves. If they can't support themselves, they can't afford to engage in the creative things you like to steal but dress up as idealism.
By the way, not that background matters, but you are talking to someone with a background in business and politics, who happens to have decided he wants to be a filmmaker. Although I have these dreams I am trying to meet. I am pretty level headed. Don't talk to me in flowery abstractions. Give specifics, or I am going to assume you are just making shit up as you go.
"I do think that any IP law regime that prevents by what all accounts is a work of high artistic merit ... from being released has some serious problems"
That's an outlook that encapsulates much of the dimness and naiveté of the anti-IP folks.
The merit of the work has nothing to do with whether or not you get to steal other folks' labor. In the Two-Lane Blacktop anecdote I related above, the movie finally got seen because the rights holders in question thought it was a work of high artistic merit, and thus decided to allow their labor to be used for less than what the market would bear.
It didn't get seen because it was decided that it was OK to steal the Doors' song. It got decided because the rights holders decided to make a contribution to the arts.
I've seen Superstar, and I think it's a work of high artistic merit. But I really find it utterly absurd to think its artistic merit justifies stealing other folks labor to widely distribute it without the rights.
"There is no (legitimate) 'right' to an IP monopoly -- it is granted as a part of a system soley to benefit the public"
This is true of all property.
There are problems with copyright law. But these aren't the same as the issue that artists face. Yet, that reality is glossed over in favor of using copyright as the basis of the problem.
I think MovieGuy is driving in the right direction here, by pointing out that IP law is often something of a red herring in these discussions. A more fundamental problem is that the entertainment industry is built on a foundation of outdated business practices and buggy-whip technologies, such as sheet-music publishing, licensing middlemen, etc. who would be completely redundant in the internet era except for the fact that they control the legal rights to the music.
While I certainly would like to see IP law reform, a large part of the problem is shared by all other types of property law -- it protects decaying corporate empires rather than protecting and enriching the productive people who do all the creative work. Intellectual anarchy is a viscerally satisfying response to intellectual oligarchy, but it's probably not the most efficient response. Social democracy fares better than bolshevism in the long run.
"Thanks for the theory behind copyright law. Now let's talk reality of life."
The theory is important -- you do not have a right to make money off making movies. We cannot get anywhere unless we agree on that. (I am not an abolitionist, btw).
Movies, I would argue are the hard case (very expensive to make), but lets think of a few ways:
1. Grants - expand he NEA with the money saved from enforcing IP.
2. Patrons of the arts
3. Government reimbursment for films of value.
4. Government granted prizes to fund films.
I suggest reading Dean Baker, and most of this works a lot better with music, which people will produce for free anyway, and then could charge for in local perfrmances. It also works better for things like pharma, where people like Baker have shown that the costs of these IP protections seem on first pass, at least (he contends there is practically no research on this) to vastly outweigh the benefit in incentives.
my main point, though, makes a lot more sense with music - I do not really care if you have to work a day ob to produce music - my contention is that the quality of music available would not go down very much, if at all, if IP on music were eliminated.
"A more fundamental problem is that the entertainment industry is built on a foundation of outdated business practices and buggy-whip technologies, such as sheet-music publishing, licensing middlemen, etc. who would be completely redundant in the internet era "
I'd even dispute this.
There has been an abnormally high level of middlemen in the arts for all of eternity.
This isn't because the arts are stuck using outdated business practices, but instead because certain aspects of the business of the arts demand a high level of middlemen to function most efficiently.
And it'll always be that way. It's just a weird and tweaky business.
I'm an ex-ASCAP employee and I would bet that performance royalties make up a significantly greater portion of a music publisher's income than mechanical royalties.
Do you know anything about the film industry? Because as I have said multiple times- you and other poster seem to want to us to accept as true that films are not getting distributed because of music licensing issues.
Under a sane IP regime, the copyright on Gershwin et al would have expired years ago and the works would have entered the public domain. No high royalties, less risk, more likelyhood of the film finding a distributor.
Now Petey has a better example with Two-Lane Blacktop, as most of The Doors are still alive, and thus have a much more legitimate claim (I'd have to do a little research to remember what the optimially efficient length of copyright was according to studies I've seen, but for sake of argument let's say 'Moonlight Drive' falls under it). But still, wouldn't we overall be better off with some sort of compulsory license scheme based on a percentage of money earned by the work? If the film earns little, yes, The Doors earn little, but more than they earn if the film is never made. If it earns nothing or loses money, they wouldn't earn anything from this use, but they aren't hurt by it, as their music isn't a rivalrous or exhaustible good, and society at least has one more work of art. And if the film is wildly successful, they could earn more.
I'm just spitballing here, but economists and other thinkers smarter on this issue than I have come up with a wide variety of alternative royalty schemes that both make it easier to get more works of art made while still allowing creators of existing works to be compensated. We just need to be willing to think outside the current system a little.
There has been an abnormally high level of middlemen in the arts for all of eternity.
And it has been possible for a single person to produce professional-quality music and mass distribute it from their own bedroom for all of a decade.
You have a point, to be sure, but a great deal of the hoop-jumping required in the contemporary arts is focused on meeting protocols established in previous eras.
As Phaedrus points out, if we were building an entertainment industry and IP laws from scratch today, it wouldn't be hard to come up with a much saner, more efficient, and collectively beneficial system.
"And it has been possible for a single person to produce professional-quality music and mass distribute it from their own bedroom for all of a decade."
Sure. But there are precedents.
Gutenberg eliminated the need for all the monks to sit around copying books. But it didn't eliminate the need for all the literary agents and various other middlemen.
Network distribution is obviously going to change lots of things about the business of the mechanically reproducible arts. But everything we know indicates that whatever system evolves, there are still going to be a lot of middlemen. The arts are still the arts. It's just the monks that'll get displaced.
Yeah, that Ted T. dude sure doesn't know what the hell he is talking about.
Matt does not overstate the case when he says it is "all wrong." It would scarcely be possible to state the legal issues less correctly.
Gutenberg eliminated the need for all the monks to sit around copying books. But it didn't eliminate the need for all the literary agents...
There were literary agents in medieval monasteries?
"Hermanus, you've got talent, kid. But if you want your copy of Plato's Republic to hit the big time, you need someone who understands how the system works. That's where I come in. My lawyer, Contractus, can get your work cleared by the censors, no problem. For a cask of his favorite brandy, Friar Tuck can be persuaded to do a dramatic reading after vespers. I went to school with the King's scribe... there's no limit to how far we can take this thing. You just keep scribbling, kid, and leave the rest to me. You're gonna be a STAR!"
"Movies, I would argue are the hard case (very expensive to make), but lets think of a few ways:
1. Grants - expand he NEA with the money saved from enforcing IP.
2. Patrons of the arts
3. Government reimbursment for films of value.
4. Government granted prizes to fund films."
Are you serious? You want people who can't even appreciate tangible things like killing folks in Iraq is wrong to decide what constitute art? I am all for the NEA and PBS, but let's be real here. There are some films which a government can not make. A government could not make Lord of the Rings? It was big budget, but it was an incredible movie that required private financing. And that's the point. Not everyone is going to have the vision to know what is art or not. Anecdotally, having gone from business to filmmaking I can tell you personally I've had to realize that just because someone is my friend, and wants to help out, it doesn't mean they understand how to visualize a script I've written in order to tell if it's a good or bad story, whether I am doing great with characterization. Etc.
And what do you have to compare it to? Europe? I am all for subsidies and tax breaks to filmmmakers, but to change copyright law from its primary axis (which is to provide incentives so that I can make money so that I will create)would rob me of one of the few tools a filmmaker like me has to make films.
Let's be clear here. You aren't hurting just as you call it- corporate America. You are going to hurt every independently financed movie that people put together with nothing much more than their rights to the project, actors and a crew. You don't just end a Lord of the Rings- you end a City of God. You also kill "Killer of Sheep." A movie like that only has the IP going for it. There are no big name Hollywood stars in it. If you kill that, then why would any distributor take the risk on our projects. I fundamentally think a flaw in many of your arguments is a lack of understanding of the film industry or filmmaking. It's not making music. It's a collaborative, long process, even with all your ducks in a row. It's also IP intensive. It's the only thing we sell.
Incidentally a list of other movies that would have had a hard time finding funding-- Boys Don't Cry, Brokeback Mountain, Eve's Bayou, One Flew Over the Cuckkoos Nest, Dog Day Afternoon, Wellcome to the Dollhouse, and on and on. When you talk about these abstractions- let's reduce it to very real films that were created by a system that you claim doesn't work. I believe its on you to provide more than faulty logic to backup your claim.
To follow up on movieguy, we really do have a flourishing independent film industry in the United States right now, under the current IP regulations. We also have a music industry that's slowly bleeding to death from a thousand paper cuts. In my mind, the plight of Killer of Sheep is more of an indication of what's wrong with the music industry, and the complexity and costs involved in getting these two industries to interact successfully, than it is an indictment of all that is wrong with IP Law.
As a semi-related shameless plug, I encourage everyone in the DC area to check out the Silverdocs festival at the AFI Silver Theater next week. Mrs. LaFollette Progressive has worked long, long hours to help put on a good show for everyone.
Movie Guy,
As I have stated, I do not think this eally applies well to movies, because of their high cost of production.
The crucial thing to me s that we realize that 1) THere is no right to make money making movies, and that 2) IP protections grant government protected monopolies in exchange for the incentive to create things of value for the public.
In my opinion this should no be at all controversial. Perhaps the talk about whether what we get in entertainment is worth it would be, but the underying principle should not. Obviously, you seem to think that the principle is unimportant ("Don't talk to me in flowery abstractions."). I started commenting on this because I thought you got the foundations of IP wrong ("b) aknowledging that a musician and music companies have a right to obtain some money from licensing music in films") -- and I think that assumption is common, wrong, and distorts the debate.
With that said, IP as currently configured works best for Film, because of the high costs of production. In music, I would argue, eliminating IP monopolies would not hurt what is available. In the future, technological changes could change that determination for film -- the key point is that we recognize that IP is a policy choice that has costs and benefits.
the Coach, your comments are nonsensical. It makes no sense to say that one has no right to make money off of one's property since making money was the incentive that the founders intended. You are adding that to what copyrights do. They give us the ability to make money, and through that you get to opportunity to see works that you would not have seen if we didn't make money. As long as you say making money doesn't matter. You will remain nonsensisical to any artist out there creating anything. I got the foundations right. You are the one who has nothing more than abstractions upon which to make arguments, but no substantive input. Give me specifics of what you think can be done to create incentives for artists to create and distribute their works, or stop pretending like you are interested in anything but the bottom line of gettig my works (and those of others) for free. because until you talk about the real world you are again full of shit.
I want to make myself clear because I get so angry at people like theCoach. Essentially, his argument is that the founders created copyright law to make sure creative works are distributed. This is right. But it only is right in the sense that one points out that a manufacturer of a car creates a car for the purpose of people driving it. What the Coach misses, and what pisses me off as a filmmaker is how he so easy glosses over the bargaining that exists within the copyright monopoly. The bargain is this: I create, I am more willing to distribute my works, you get to see it, and in return, I get paid for it. The incentive is based on my making money, and anything that ignores this incentive isn't based on the real world- the exchange occuring between the artist and the greater community. And no private patronage could not produce the same result, and I wouldn't want it to as an artist because it reduces rather than increases creative freedom to be chained to the tastes of others. At least now I can create my work, and if you hate it, you don't buy it. Your way- I would have to first come to you- ask you what you think- and then hope to create it if I can convince you my work is worthy. This of course is ass backwards.
Movie Guy,
Yikes!
This really should not be so hard, and I am sure it is me that is making the error in clarity as I am otherwised engaged. I apologize for that.
Yes, you have a right to make money under the current law. Fair enough. At question is whether or not that law is a good one. I hesitate to go back to founders, because, in my opinion they are irrelevent, but they chose their words more carefully and were in general more articulate than I:
Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The keys to me is "To promote the Progress of Science and useful Arts" and "limited Times" -- the goal is not to provide a way for artists to make money, that happens as a side effect. The goal is to promote the useful arts. So, the question at hand, and one that I have not really given my opinion of, is what is the best way to balance the promotion of the "useful arts" with the costs of "securing exclusive rights".
What is troubling to me is that I am writing something so trivial that I think you must be misunderstanding what it is I am saying - so I apologize. Maybe someone can help me with my lingo, IP protections are and should be thought of as "instrumental" rights, rights based on their empirical ability to provide for some other justification, in this case, the promotion of "useful arts".
I am going to give you the courtsey of saying good luck Court. If you want to talk theory and abstractions without reality- then you have too much time on your hands. I am all for discussions with people who are grounded in reality. But I have about as much patience with someone like you as I do with the Christian right.
MovieGuy,
If I could interject and possibly translate what theCoach is saying into realistic examples.
You: "The bargain is this: I create, I am more willing to distribute my works, you get to see it, and in return, I get paid for it. "
What theCoach is asking is this, "What do you [and here I mean the filmaking community] require to be 'paid' in order to create works?"
For example, for a work created today, a copyright will expire 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.
A practical question that arises out of theCoach's point is asking is "how short can we make the copyright term before people actually stop making works?" Personally, I have a hard time believing that ANYBODY would refrain from taking the time to write, produce, or direct a film if the copyright term were limited to the shorter of 25 years or life plus 15 years. Be honest. Would you not write a screenplay that you would otherwise write today if you knew that you could only receive profits on it for the next 25 years? I doubt it. Sure, as a screenwriter, you might like the idea of copyright protection extending into the 22nd Century. But for the average American it is a poor bargain.
This isn't about "screwing" the creators of artistic works. It is about coming up with IP schemes that are limited to furthering the purpose set out in the Constitution.
When Congress extends copyright terms (or creates new rights) without any evidence that such expansions will incentivize the creation of any new works, it is merely a windfall. And when Congress RETROACTIVELY extends copyright terms to existing works, it is literally impossible for that retroactive extension to have any public benefit, particularly if the author is dead.
Space,
I am not saying there isn't a middle position. I am saying that the way to find it is not to go where theCourt is going into flights of fancy over how copyright law is only about distributing works. The middle ground is to admit it is for both the artist and the community, not either/or.
I become suspious when articles such as the one above are written. They aren't seeking from what I can tell a middle ground, but instead are propaganda designed to say "Look, see, I told you how bad copyright law is." The above article isn't an argument for copyright term. It's an argument for how one should have the right to use music in films regardless of the length of the copyright.
I want to point out to you that you need to realize the difference between what you just wrote, and what theCoach has written. He doesn't recognize the property right at all. You do. Not recognizing the property right is the crux of the difference.
That's the core of theCourt's view. He doesn't call it that. But he doesn't have to. When he weighs only the distribution of the work without worrying about the compensation to the artist- he is saying "I don't care about the incentive because I don't think of it as property." He's ignoring the bargain being made between society and the creator of the work to convince the creator of the work to show his or her work to others.
To be honest, I think you simply misunderstand what theCoach said.
He wasn't saying that artists shouldn't be compensated. He was saying that that compensation ARISES out of the contract that our society makes with artists. But he was pointing out that that bargain is not one that we are obligated to make.
For example, Congress and the President could abolish Copyright protection on all works created in the future. I'm not advocating that they do that. I'm pointing out that it is within the purview of our government to abolish Copyright law.
For argument's sake, if that were to occur, you would still be free to write a screenplay. And even to sell it. But others could copy it freely without punishment. You might decide not to create in such an environment, but if you did you would have no "right" to complain about others' copying.
theCoach was comparing that situation to what we consider fundamental rights. The government CAN'T tell you that you cannot write a screenplay. Or distribute it. They cannot take away those rights.
I agree that, having made a bargain with artists, our society is (largely) bound to honor it. But that doesn't mean that it is in our best interest to continue it as it exsts. To put in more practical terms, yes, we signed the contract, but that doesn't mean we should pick up the option.
theCoach wasn't saying that compensating artists doesn't matter. He was saying that compensating artists only matters so far as it encourages the creation of works. If artists make 50% of what they used to, but still create 98-100% of what they used to, the public should not care.
I have worked in the music business for a number of years. I can tell you that while "the industry" is suffering financially, it is easier and cheaper than ever to produce quality music (the exception being orchestral, or other union-requiring works) and the reduction in corporate profits is almost certainly NOT going to lead to a reduction in the amount of music produced. While it is harder than it used to be for an artist to make ten million dollars off of an album, it is easier to make 50-100 grand. As long as artists can make a living (not a fortune), music will be produced.
Bottom line: If you want to convince theCoach, don't argue that you will make less money under a given scheme, argue that artists will no longer produce works under that scheme. The two are not (always) the same.
Yes, if you want the benefit of artistic works not limited by what the wealthy want, then you are obliged to bargain with the artist. If your goal is to score theorectical political points in an online discussion, then sure, you aren't obligated, except for the clause in the Constitution that says you are. I am not interested in theory. Just practical reality of making a live as a filmmaker.
space has it exactly right. I am always reluctant to use the term fundamental rights, because in my opinion that is shaky philosophical territory as well, but in the common framework with which these things are discussed, space articulates what I was trying to say much better than I did.
As he says, I immediately get suspicious when someone uses the term 'stealing' -- tell me why eliminating a certain type of IP will have the real world effect of me not having adequate movies to see. -- Thanks space.
Comments closed June 22, 2007.
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Heads in the Sand
I have no idea if the previous take on licensing was wrong or right. But I will say it's irrelevant to the issue of being able to distribute Killer of Sheep.
Posted by Petey | June 8, 2007 8:29 AM