Acclaimed animated movie can't be shown because of licensing costs for 80+ year-old music

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129 Responses to “Acclaimed animated movie can't be shown because of licensing costs for 80+ year-old music”

  1. Kurt says:

    #1, re-recording won’t help, as it is the composition copyright (the songwriting) that is still held, and that is what controls the right to synchronize with a film. Re-recordings would still need the same permission of the holder of the songwriter’s copyright. The actual recordings in this case are out of copyright!

  2. Anonymous says:

    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.

    I also can’t help but feel as though a different value is placed on audio compositions versus visual ones. If the situation was reversed and somebody took her visual work to pair with their audio, I would think she’d appreciate if if they cleared it with her, the author and copyright holder, first.

    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.

  3. Thalia says:

    This is very strange because copyright law includes a mandatory licensing clause, at set prices, for compositions. (17 USC 115).

  4. queensissy says:

    PS – All this about “did not read the article and your comments are invalid” isn’t valid. I think plenty of us read the article and still felt she did a poor job of trying to clear the rights.

  5. RevEng says:

    @#108: As a matter of fact, I did exactly that in the five years of university leading up to my job as a programmer. Believe me, I know the feeling of trying to pay the rent.

    While you may not be trying to get set up for life, there are many artists who expect that after the fact. In fact, royalties allow exactly that to happen. The $70,000 I invested in a university education won’t result in millions of dollars in return, nor will it pay me a constant stream for the rest of my life (and then to my children and their grandchilren — if you don’t believe it’s possible, ask the person who owns the rights to Happy Birthday or Mickey Mouse, if they still live). Instead, it makes me more valuable as an individual, so that I get paid more for each day I work in the future.

    Artists have the same incentive. Producing a major work should certainly cover the cost of producing it, as well as the time spent doing so, but it doesn’t make sense for it to continuing paying indefinitely. However, it certainly can pay out indirectly by allowing the artist to demand more for their time on future works.

    I do also understand your point of the risk vs. return inherent in making a production. There’s never a guarantee that the work will payout. However, I don’t see how this entitles anyone (the original artist or a rightsholder 80 years in the future) to demand any price they care for, or to demand money for it to be used in a derivative work, or for it to continue indefinitely. Remember, these are not natural rights — these are laws put in place to encourage art. Why should artists be allowed to demand so much, other than for the fact that current copyright law allows them to? Do they really need that much encouraging?

  6. annoyingmouse says:

    It just goes to show how pathetic those laws are. Annette Hanshaw has been dead for nearly 24 years and instead of perhaps respecting the woman’s memory by bringing attention to her work, people who had no involvement in the creation of her art stop others enjoying it unless they get money.

    It’s reminding me of the equally ridiculous Letty Lynton situation where these stubborn laws mean that the work lots of people put into making a film has gone unappreciated for over seventy years.

  7. catbeller says:

    Ooops. Could get out on Bittorrent, so sad. Don’t leave a DVD lying around where someone could just pick it up and transcode it and seed it… that would be wrong.

  8. Shrdlu says:

    ATTENTION: Cory Doctorow sighting on CBC Ideas program titled “Who Owns Ideas.” It’s not only informative (especially Cory’s bit on Sears photography studio copyright), but entertaining and a good primer on intellectual property.

    http://www.cbc.ca/ideas/features/who-owns-ideas/index.html

  9. grimc says:

    In related news, the “Happy Birthday” song is still under copyright, the current owners being AOL-Time Warner. Keep that in mind next time you take Junior to Chucky Cheese for his b-day.

  10. sgj says:

    Content creators who are posting here (#61, #73 and others) are in an entirely different situation than the rights holders that Nina is dealing with. The people posting here are alive, and the people who made the music Ms. Paley used are dead. This money isn’t going to artists and musicians like you guys, this money is going to business men, to suits, to the man, man!

  11. Anonymous says:

    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.

  12. Scott in Laguna says:

    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?

  13. sluggo says:

    From experience, copyright holders name an impossibly high price when someone inquires about music that hasn’t seen the light of day or been listened to for decades.

    I contributed music on a movie (http://www.rottentomatoes.com/m/kwik_stop/) which used ridiculously old and obscure music in the festival circuit, but when public distribution was planned, the license fees were completely out of hand.

    My pal who was the music supervisor found new songs for everything, and arguably the film is better for it. Especially since it never would have seen the light of day otherwise.

    • Antinous says:

      Moderator note:

      We’ve now reached critical mass for people claiming that she’s causing poor artists to starve. The artists in question are already dead. Say something fresh or don’t say it at all.

  14. maxoid says:

    It seems like a lot of people here are pulling the harry lime defense, here quoted from wikipedia’s page:

    “You know what the fellow said—in Italy, for thirty years under the Borgias, they had warfare, terror, murder and bloodshed, but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love, they had five hundred years of democracy and peace—and what did that produce? The cuckoo clock.”

    Limitations breed creativity, it’s true, but that doesn’t mean the limitations themselves shouldn’t be held to trial. Copyright is not above being put to the test as a concept, and this is a good example of necessary re-examination and refinement, yes?

    And for the solo creators here thinking that changing the model would take away your rights and threaten your livelihood, that strikes me as incredibly naiive.

  15. jphilby says:

    Too bad there’s nobody out there in the world anymore who can write music and needs the money.

    .

  16. benposch says:

    Leak it on bit torrent, or just send me a copy. I’ll make sure it gets seen. And screw the company that owns the rights to the music. There should be no license required to create art. Anything you can see, anything you can experience, is fair game for art. Since when did artists follow the rules?

  17. benposch says:

    The official site for Sita Sings the Blues: http://www.sitasingstheblues.com/

    Also, the trailer is up on Archive.org: http://www.archive.org/details/SitaSingsTheBluesTrailer2008

    Beautiful work! I’ll get my hands on it one way or another!

  18. teamtim says:

    If you’re in the Columbus, Ohio area (or willing to take a drive) the director will be speaking before a screening of Sita Sings the Blues on 2/27 at the Wexner Center for the Arts. More information can be found here:

    http://www.wexarts.org/learn/for_families/?eventid=3489

  19. Anonymous says:

    Oh, this is horrible. I saw this film at SIFF and it was a real high point of the festival for me. I can’t tell you what a tragedy this is because the film is such a fresh and beautiful work.

  20. Larem says:

    Could someone please explain to this layman the difference between the copyright expiring and the composition not expiring?

  21. mechno says:

    Back in 1987, The JAMS released their album titled 1987. They used unlicensed samples of ABBA’s Dancing Queen and as a result (so the story goes) The JAMs had to recollect all unsold copies and destroy them.

    They later released “1987: The edits” that had musical gaps on the record where, per the included instructions, listeners could reinsert the samples on their own.

    I would be interested if she took a similar approach and optimized her release to have the offending audio restored by the end user. Given the prolific availability of video editing software, I don’t think this would be all that difficult at all.

    Or release it via a country that has more workable content laws.

    I read a bit of frustration that people have with her for not researching this before her project started, but I think there’s a value to her “mistake” in that it challenges laws that are in need of reform.

    I hope I someday get to see it!

  22. jjasper says:

    Oh *that’s* why. I was lucky enough to see this film in Singapore. I hope the $50,000.00 cost is easy to get. It’s an astounding film. I can’t imagine that it wouldn’t make back a $50,000 investment really quickly.

    I hope Boing Boing will follow this story, and let us know when it’s finally released on DVD.

    Nina’s talent is amazing. It’s a shame that time she could be spending creating more great art is taken up by having to focus on a copyfight like this.

  23. christov says:

    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 #10 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.

  24. piotr DIY says:

    Why she did not use free (public domain, gnu or CC) music?

    Using copyrighted music = problems!!!

    I made a film with friend and we can not put in anywhere because our montage guy has put in it some copyrighted music from unknown source.

    Newer do that use free music or find someone who will compose it for you.

    regs.
    Piotr

  25. queensissy says:

    So, anyway, I was thinking about this further and I have a solution to all of Nina’s problems with this getting seen: get it on PBS. PBS has blanket synch licenses in place with all the major publishers and most of the indie folks too. She doesn’t have to get any additional synch licensing in place if broadcast is limited to PBS. You’re welcome, Nina.

  26. TK says:

    Quoting the aritcle – “In the Digital Age, distributors function primarily as a barrier between artists and audiences, prohibiting access rather than facilitating it.”

    So true.

  27. atomicelroy says:

    #79 good point, copyrights should be tested. Maybe she should find a valiant distributor who’ll risk the C&D order and make it a precedent.

  28. Alessandro Cima says:

    I’m not entirely buying this argument for Ms. Paley. The copyright game is one that we are all familiar with. You don’t enter a project based entirely on pieces of music that you didn’t compose or record without many second thoughts about the possible copyright issues involved. I can pretty well assume that Ms. Paley thought long and hard about what she was about to do and decided to just put aside her copyright concerns and hope for the best. I’ve done that. I totally understand that. I make animations, films and audio that use music. I’ve used old music, public domain music and I’ve had music composed for my projects. But I always consider the copyright issues ahead of time. Always. I know which films can’t be sold because they use questionable pieces that may still be copyrighted.

    I’m sure Ms. Paley knew quite well that her film’s music was not Creative Commons licensed. I’m sure she knew there was the possibility of the compositions being under copyright. She’s a filmmaker. Of course she understands these issues. It’s the whining about copyright now that the film is doing well in festivals that I find ridiculous. There’s a suspect vagueness to her arguments about this issue that I find irritating and dodgy.

    I wouldn’t make a music video of a Rolling Stones song and think that I could go off and sell it. I wouldn’t pick 1920s jazz and think I could sell it either. I respect an artist who decides to just go grab the music and run. I also respect a family that can suck money out of 70-year-old music! How cool is that? A little song – a sweet piece of music can cause consternation over copyright and money 70 years later! Wonderful! Bring it on! It’s not suppressing anything. I’d love to live forever on the money from one tiny song! Hooray for copyright! I’d live to 100 in a wheelchair and hum my little money-maker tune straight to my grave. And my gravestone would say ‘Copyright c 2061 All Rights Reserved!’

    The Paley film is beautiful and magnificent. The music is fantastic also. Quite a creation. It exists. It’s done. Slap it up as a free download. Let us grab it while it’s there and stop whining about silly copyright issues.

    If you’re going to steal, do it with a smile and live like a good thief. That’s happiness.

  29. Anonymous says:

    For those asking what the dollar amount for the licensing is, Nina states the amount on her blog that is linked by the first comment.

    The initial quote was $220,000 total for her movie and $15,000 – $26,000 for individual songs. Apparently the copyright holder has agreed to lowering the $220,000 to $50,000, with strings attached. Read here for more details.
    http://blog.ninapaley.com/2008/12/28/sitas-distribution-plan/

  30. Anonymous says:

    Sita Sings the Blues is going to be broadcast on New York PBS station WNET Channel 13 on Saturday March 7 at 10:45pm on the series Reel13.

  31. Kieran O'Neill says:

    #3, #10: Did you even read the article snippets posted right above here?

    “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.”

    “And that’s part of her point: artists “internalize the permission culture”, which in turn affects the kinds of art they make. ”

    What you are saying, effectively is: “Shut up, sit down, that’s the way it is! You silly amateur, how dare you question the system?”

    (That’s not contributing to any kind of debate.)

  32. Sputnik says:

    I would never have heard of Annette Hanshaw if it wasn’t for Nina Paley’s work.
    I liked her music so much, I went out and bought a couple of her cds last year. If I show a receipt, will that count towards what they want her to pay?

  33. Raj77 says:

    There’s an astroturfy, shilly sort of a texture to a few early comments in this thread.

  34. DefMech says:

    @Reveng

    It sounds like you’re saying that an artistic work or product ceases to have value after its completion. There’s lot of creative work out there that’s worth far more than just the time spent creating it. If you code a new application, do you stop charging for it once you recoup your development costs?

  35. Kieran O'Neill says:

    #82: Queensissy: And for those of us in the rest of the world who want to see it … ?

    And to everyone else, let’s be clear on a few things:

    1. I have not seen it, but from the trailers and reviews, this film looks like pure awesomeness, and even Roger Ebert thinks so.

    2. The film contains a deeply personal element, telling the story of Nina being dumped quite coldly and suddenly by her husband while on an extended trip to India. The Annette Hanshaw songs helped get her through that, and were core to the idea of the film.

    3. The Annette Hanshaw songs are not the only music in the film – there was a lot of original music composed specifically for it by indie composers.

    4. Only the Annette Hanshaw music, written by a composer now dead and performed by a singer now dead, is proving to be a barrier. The rights are not held by the composer’s estate, they’re held by the record company.

    5. Nina will be releasing the film free to the world, under a CC license. That means she will not see a red cent for the film directly, and everyone will be free to do whatever they please with it, possibly even including making money off it (depending on the license).

    And again, she’s opposing the system itself, and testing a new way of making a film. Something similar had already worked for career writers of books and short stories, Cory being a direct example. Now we get to see if it works for a film. Personally, I’d like it to.

  36. Charles Guarino says:

    #80 We’ve now reached critical mass for people claiming that she’s causing poor artists to starve. The artists in question are already dead.

    Presumably, some of the artists’ descendants remain alive, and might wish to collect any royalties flowing from the late artists’ works, the rights to which in most cases continue for 80 years after death under the Copyright Act in the U.S.

    Given that several commenters have pointed out this distinction, I am at a loss to understand the purpose of #80, especially in the purported context of moderation. If a “critical mass” has been reached in anything, it is in the astonishing number of comments seeking to justify non-compliance with IP laws solely on the ground that intellectual property is an intangible item (see #36).

    Perhaps not a perfect analogy, but one has to wonder how the persons espousing such beliefs would feel if their employers only paid them for the portion of their workday in which they were engaged in physical labor and not the intellectual portion of their jobs. “Sorry, but you were only typing at the computer for four hours today. You were staring at the screen with a blank look on your face for the other four hours, and we don’t feel that we should have to pay for something as intangible as your thoughts.”

  37. Kurt says:

    Larem(#54), Songs have two copyrights: the copyright that belongs to the songwriter (composition) and the copyright of a particular recording. Confusingly, they can expire at different times. The easy example would be a modern recording of an old song, let’s say “When Johnny Comes Marching Home”. The composition is in the public domain, but the new recording would be under copyright.

    The reverse would be a song in which the recording has fallen into the public domain, but the songwriter’s copyright is still in force, which I believe to be the case here. Those rights should expire whenever the composer’s copyright does.
    So it works like this: in 1929 Link/Waller/Rose write I’ve Got a Feeling I’m Falling. Annette Hanshaw records it, which is then published. Said song recording’s copyright is not renewed, falls into the public domain. Meanwhile, Link/Waller/Rose at some point sell the songwriting copyright to Warner Music. 28 years after it was written (1957), Warner renews the copyright for another 28 years. In the 1970s, Congress extends copyright, and then does it again in the 1990s, so now anything published after 1923 and was renewed is under copyright for 95 years. So right now, the songwriter copyright will expire in 2024, assuming copyright isn’t extended again between now and then.

    As an aside, it is interesting to note (at least in the US) that when a song is played on TV or radio only the songwriter gets paid, not the recording artist. (See http://entertainment.howstuffworks.com/music-royalties1.htm ) Now you know why modern recording artists like to record their own compositions.

  38. Nina Paley says:

    #73
    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.

    Because they’re dead?

    Yes, this music is old, but in some cases the writer is not “long dead” – Fred Ahlert, for example, a co-writer of “Mean to Me,” died in the past five years.

    5 years dead is still dead, I’m afraid.

    Clearances for 80-year-old songs that were supposed to be in the Public Domain decades ago have nothing to do with paying artists. They have everything to do with protecting an outdated monopoly business model from competition. The only reason these songs are not in the Public Domain is because Big Media lobbied Congress to pass unconstitutional copyright extensions. From the US Constitution:


    “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.”

    When the Constitution was written, those “limited times” meant 14 years or less. These songs were written under laws which, at the time, guaranteed monopolies of 56 years or less. Big Media changed those laws, retroactively, over and over again. “Limited times” have been eradicated. Someone is stealing old songs, but it ain’t me.

  39. BingoTheChimp says:

    @ REVENG (sorry, my typo last time)

    I don’t think we’re entirely in disagreement on principle, though perhaps in scale. However, I do think the artist has the right to “demand” an exorbitant fee, while the customer has the right to refuse and look elsewhere. At the risk of over-commoditizing the music, Nina can find something comparable for less. It’s just a choice — buy the Jaguar or buy the Yugo, but don’t tell the Jaguar people they can’t “demand” a higher price.

    Believe me, I’m usually a pinko lefty when it comes to economics, but I actually think this is an example of the free market working well.

    Anyway, we are probably at an impasse for now on this thread. See you next time :)

  40. sluggo says:

    I should add that I’m a copyright holding musician and artist, and consider our current copyright terms to be theft from the public. I don’t think copyright should outlast the artist, and I don’t think that it should be ‘passed on’ to heirs. The guys who had it right were the ones who wrote it. 28 years. You can’t make your money in that time, hello public domain.

    Those who insist otherwise are greedy, or just crappy artists.

  41. christov says:

    A few final points:
    1. Being pro-copyright is pro-artist. It’s very hard to create good work, and copyright is the only way to make sure the artist is compensated.
    2. Copyright laws can be reformed. The extensions do seem excessive and there is a good argument that shorter terms are better for society.
    3. Liberal and clear fair use laws promote more creativity, and can create benefits for the copyright holder as well.
    4. Copyright licensing should be easy and transparent.

    In short, intellectual property is just as real as physical property and often harder to make. It is the basis of advanced economies. It’s silly to argue that it should be eliminated, but we should argue about the terms of copyright (and patent) grants.

  42. MrJM says:

    Is everyone who questions the premise of the original post, i.e. that the movie maker’s “right” to create trumps property rights, going to be disemvoweled?

    Does this mean that expression of contrary points of view is now offensive on Boing-Boing?

    Odd that…

    – MrJM

  43. Kieran O'Neill says:

    #13: Christov, it’s music that was created in the 1920s. I’m reasonably certain the creator is dead.

    And further, to the “that’s-so-amateurish” crowd: Yes, she’s an amateur film maker. What exactly are amateur film makers supposed to do?

    To quote from the interview:

    “So I, back when I had money, because I don’t have money anymore, out of my own pocket had to pay for a law firm to talk to these publishers. Because if you’re just some schmuck like me, it’s not worth their trouble to even talk to you.”

  44. noen says:

    We live in a time of corporate feudalism. Only corporate “persons” can play at certain levels. The legal system itself has been corrupted to the point where only wealth and corporate power can effectively operate.

    This situation is a perfect example of that. Nina couldn’t even find out what the copyright status of the songs were. The corporate suits wouldn’t even talk to her. Why should a Lord deign to speak to a serf?

    It won’t get better. For all those current artists who think that kissing your Master’s ring will save you think again. If the Orphan Works bill ever gets passed you can forget about whatever tiny income you now scrape out. It’ll be gone and you’ll have the choice of joining a studio to create or else watch everything you make stolen from you the moment it leaves your hand.

  45. The Unusual Suspect says:

    Anonymous @#10, very good points, but the reporting implies that she believed the music to have passed into public domain after 80 years. (And she was apparently right insofar as the recording was concerned.)

    Please clarify for me the statement “although the recordings are out of copyright, the compositions themselves are still restricted”.

    The composition of the work must precede any recording of it. If the recording has passed into public domain due to its age, wouldn’t the composition have also done so at an even earlier date?

  46. queensissy says:

    First, I need to correct myself; Fred Ahlert didn’t die in the past five years, he died in the ’50s. Total brain fart on my part and I was thinking of one of his contemporaries.

    But, I have to reiterate that I think Ms. Paley should have done a more thorough job researching fees PRIOR to her showing the film anywhere (my records are showing that she requested festival rights two months after the first festival screening), or taken a firm stance that she was going to practice a form of civil disobedience to protest current copyright laws.

    I’ve already suggested one alternative to “strangling” her film (show it on PBS) which was immediately met with a “that’s not good enough” response (from a commenter other than Ms. Paley, to be fair). Maybe that’s not good enough, but it’s a start. I’m sure other countries have similar license exceptions for public broadcast like PBS has, but it would take some further research by the filmmaker or her clearance person to see what those avenues would be. Getting rights for free takes some work in the way the laws are currently set up (and yes, I agree they’re overreaching), but it’s not impossible.

  47. Alessandro Cima says:

    Antinous,

    I sort of kind of a little agree with what you are saying in post #120. But not really. Every artist must master his or her tools. I would expect a painter to understand how to mix pigments with linseed oil. I would not expect that painter to be a chemist however. I would also expect a filmmaker who has somehow mastered a certain amount of technology to at least be aware of copyright and the slight possibility that copyright would somehow prohibit the use of certain materials. This is very common knowledge. I’m not arguing for these absurdly long copyright extensions, but the rules exist and artists need to function as if they understand the world they are living in and the materials they are using. Writers know to look for publishers. Actors know to look for agents. Singers audition for American Idol. The idea of the artist operating in a vacuum is from storybooks.

    And besides, Ms. Paley is perfectly free to use whatever music she wants. She did make her movie after all! But she really can’t complain about copyright. Maybe ultimately the company that owns the rights will give her permission to use the music. It’s their call.

    Next week I am planning on using some of Ms. Paley’s lovely animation as a background to my latest film. I will use approximately 57 minutes of her work. It will be for sale via Amazon on DVD and as a digital download. I think she’ll be fine with it since it will help publicize her work.

    You know, I’ve been in love with musical numbers and married women, but that doesn’t mean I get to keep them.

  48. martha_macarthur says:

    why do people attempt to place such a disproportionate value on music in comparison to other artistic expression?

  49. christov says:

    In no way did the copyright concerns affect her creative vision or her ability create the art. She created it, didn’t she? She had a vision and she followed through on it. The copyright question only affects her ability to distribute.

    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.

    And if distributors only functioned as barriers, why would any artist use them? Artists certainly have the ability to post their work online. Why don’t they all do that. There must be some value to the artist, or distributors would not exist.

  50. BSD says:

    Sluggo @ 87:

    You first. Put your money where your mouth is. Here and now, release all your works to the public domain on their twenty-eight anniversary.

    I disagree with Cory and the bOingers on this topic (vociferously), but I have to give Cory credit for putting his money where his mouth is.

  51. BingoTheChimp says:

    @10

    Right on.

    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.

  52. chumpmeat says:

    Doug Nelson,
    the first thing she says in the interview is that she knew she’d have a fight on her hands because of the music before making the movie.

    You think you could have done a little research first? The link’s right there at the top of the page.

  53. MrJM says:

    My nw flm rqrs th s f sld gld mv scrn, bt th wnr f th gld wn’t lt m s t wtht spndng tns f thsnds f dllrs cn’t ffrd. Wht n njstc!

    nd dn’t tll m shld jst s dffrnt scrn — th sld gld scrn s prt f my nsprtn nd tllng m t s dffrnt scrn s lk tllng m nt t d th flm t ll.

    nd pls dn’t tll m tht, f th sld gld scrn ws s fndmntl t my vsn, shld hv scrd th rghts t t BFR mbrkng n my prjct… bcs dn’t hv n nswr t tht.

  54. moosehunter says:

    for those of you upset over her use restrictions— take up a collection for god’s sake,
    20,000 is chump change in Intertube money

    heck, wiki got 6 million in a month…,

    so hold out yer hats and busk a little…

  55. Jonathan Ward says:

    This is a big issue among people who reissue early recordings. The people at ARSC (Association of Recorded Sound Collections) in 2005 published an extensive breakdown of copyright law as it pertains to historical recordings titled simply “How Copyright Law Effects Reissues of Historic Recordings” which written by Tim Brooks. It is disturbing, though unsurprising – and might be of interest to people here. ARSC are among many who are lobbying to reform copyright law to be a bit more generous when it comes to pre-1972 recordings.

  56. seehearbrian says:

    @NOEN

    It’s actually quite easy to research song copyright. A quick search of ASCAP.com and BMI.com should list all (if any) publishers claiming ownership of the composition in question. For recordings, Amazon or Allmusic.com will list the record company. Contact information for all major and most minor recording and publishing companies can be found through a quick Google search. Then it’s an email or phone call to ask who handles licensing for that company to begin the clearance process. The Information Age is truly a wonderful time in which to live.

    Furthermore, I’m sympathetic to feelings of powerlessness in the face of the monolithic corporations controlling the modern media, but the indisputable fact is that those corporations are not infringing on anyone’s creative rights. Similarly, copyright law does not suppress or inhibit creative freedom. Only when an artist attempts to commercialize his or her work is he or she expected to honor existing law. And in the cases where a copyright holder demands a work be enjoined or removed even when being distributed for free, there is an argument to be made that the copyrighted works being infringed provide an intangible worth to the artist in the form of notoriety or credibility, which in turn may translate into future revenues in the sale or distribution of other works by the artist.

    Bottom line, an artist like P. Diddy who samples and recycles other artists’ work is either a true artist or a hack. Either way, he pays the appropriate royalties.

  57. moosehunter says:

    better yet,

    if its so wonderful, take pre-orders and sell em for 20$ each, on the caveat that nothing ships until all the rights are paid,

    set up a itunes account, make a webpage, sell em on ebay.

    even if the rights company wants 100,000 thats only 5000 orders, hack you coulkd turn a profit and do some basic reasearch next time…

  58. martha_macarthur says:

    @89

    What if you have a postcard print of it stuck on your visor?…

    :)

    • Antinous says:

      Music differs from the visual arts in a variety of ways (or perceived ways.) You can listen to music while you’re reading a book, but looking at a painting not so much. Not that visual arts aren’t treated as environmental ornament, but music is even more so. Also a copy of an original artwork is generally seen as a second best thing. A copy of music (accurately or not) is more closely associated with the original. Music is generally more portable. It’s just used very differently than other arts.

  59. mgfarrelly says:

    @10, 3:

    A system that rewards “rights-holders” long after the creators and even their heirs, have gone on to the great hereafter is broken. This isn’t slapping a some Top 40 song on a youtube video, this is a composition that breathes new life into the music. This is an artist taking works, long since forgotten by most people, and introducing them to a whole new audience. 80 years is more than fair in terms of copyright. Even the reduced $50K pay-off is ridiculous.

    And what of the benefit the rights holders could draw from having this music popularized again? Why not work to get this movie out there as widely as possible?

    I’ve been fortunate enough to see bits of “Sita” and it’s simply amazing, a beautiful mix of music and animation, I’ll be buying one of those 4999 copies!

  60. Kieran O'Neill says:

    #60 Gadgets123, RTFA. Hell, read the comments by her, in person, just a few paragraphs up. That’s exactly what she’s allowing and even encouraging people to do.

    It’s amazing how many comments so far have neatly played out the exact “permission culture-internalized” stereotype the article describes.

    We should make a drinking game of it.

  61. Kieran O'Neill says:

    #21: Christov, the copyright concerns brought her to tears at one point. The fact that she managed through them to create the film, almost bankrupting herself in the process, does not mean that they didn’t affect her.

    And I’m surprised that no-one has commented on the distribution plan, mentioned in the first comment.

    She plans to get the film decriminalized (for the “meagre” sum of $50,000), whereafter she will release the film under a CC license. On teh internets.

    If she can go through with this, it will set a very interesting precedent.

  62. mongo says:

    Roger Ebert brought the attention in on his blog:
    http://blogs.suntimes.com/ebert/2008/12/having_wonderful_time_wish_you.html
    It was a commenter there who pointed out the issue with the music.

    “Have to encourage people to write songs in 1925.”

  63. franko says:

    count me too as someone who went out and bought annette hanshaw music after seeing snippets of this movie on nina’s blog. i hope this movie succeeds. it’s fantastic.

  64. ToddBradley says:

    I’m baffled by how this film could be “wowing the festival circuit”. Every legitimate film festival in the US requires the submitting filmmaker to affirm that he or she owns the full legal right to public performance of their work. That includes model and music releases. Did this filmmaker lie on all her submission forms?

  65. dwes says:

    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.

  66. JJR1971 says:

    I happen to think artistically that audio + visual creates a unique experience that is greater than the sum of its parts.

    What if she researched the costs and found it to be too prohibitive and never made the film at all?
    Does that really help society? Copyright protections last far, far longer today than were ever intended by the US Constitution’s founders.

    Back in 1989 my High School senior class came up with the then technologically sophisticated idea of doing a senior yearbook project using a VHS videorecorder and editing equipment. Some friends of mine were the cameramen and producers. They sampled 1980s music popular at the time and spliced it into some of the video montages.

    Fast forward to 2008. I have my old VHS tape of the yearbook converted (with my friends’ permission) to a Data DVD and post it to our Class reunion page on Facebook. People love it, laugh at the 1980s hairstyles, remember the music of our times fondly, etc. Along come the Facebook copyright cops doing RIAA’s business and I have to take the best video portions down because of the audio content…I find out not only did my friends not secure the rights to the audio back in the 1980s, it wouldn’t matter even if they did, because once it’s transferred to a new digital medium, BAM, the rights have to be renegotiated. I guess I should be grateful RIAA has changed tactics and isn’t quite as lawsuit happy as they recently were.

    And you know what, I’d actually be okay with forking over a little cash for such a limited audience…basically members of my High School class that signed up for Facebook…give me a little Paypal button, snap, I’d drop a $75 one-time license fee so that my classmates could continue to enjoy the moving images of themselves with the music of their youth…you bet I would.

    But no, the record labels have a one-size fits all approach, want something like $365 per year per song broadcast rights…want to charge me the same price Steven Spielberg or George Lucas has to pay. I guess I should be glad the RIAA isn’t suing people left and right anymore, but instead have turned Facebook, MySpace, etc, into their paid enforcement goons. “YouTube Mashups” are going to become extinct, because “Youtube Mashups”, fun as they are, are still in violation.

    I think what I will do is do a “director’s commentary” audio track and maybe do a little interview to supply an alternative audio to the offending music, so that at least I can put the moving image back up online…it’d be lame to just strip out the audio and put up a d*mn silent movie.

    And don’t tell me “free exposure” is meaningless. Hell, I liked one of the “offending” songs so much I went out and paid for a copy of it on iTunes for my iPod. Others might do the same, especially with older stuff that isn’t getting much airtime on the radio anymore.

    Instead, for now I have to pull the video so no one gets to see my friends’ visual work, and nobody else will hear the audio and think “I wonder if that’s available on mp3 somewhere?”

    I *am* willing to pay a nominal licensing fee for limited distribution of internet video with audio belonging to someone else–it’s just that the current, one-size-fits-all prices are just prohibitively expensive and stifling to new artists, especially visual artists unless you’re able to do your own music or hire a local band willing to let you use their original compositions for your visual medium.

    A for-profit enterprise using audio content for expressly commercial purposes (i.e. advertising) should expect to pay more than a non-profit using it for artistic expression; those using it in a for-profit film venture would fall somewhere in between. That’s what’s fair, but that’s not what the DMCA and related legislation say.

    Right now, Copyright holders have all the cards, all the power, and can dictate highway-robbery prices. Those with deep pockets pay, the rest get shut out entirely.

    I suppose I could try to find a local band and ask them to come up with a composition “reminiscent” of 80s music, or “in the style of” this or that better known artist, but it’s just not the same as the actual songs we all knew and loved back then. It’s mindboggling that royalties still have to be paid to use the “Happy Birthday” song in a visual composition with sound.

    I was never into Napster back in its pirate days, but I do use iTunes. I’m not against limited copyright in principle, but current laws are simply unjust and are stifling culture and innovation, and becoming contrary to (and destructive of) the intent spelled out in the U.S. Constitution.

  67. davechua says:

    It’s such a pity that such a wonderful film is locked in copyright hell. I had never heard of Annette Hanshaw before Nina’s great film, and the holders should be thankful the movie bought it into the spotlight.

  68. Kieran O'Neill says:

    #23: MRJM: Intellectual property is not the same as tangible property. Your glibness demonstrates your ignorance.

  69. sluggo says:

    BSD – sure. See you in 15 years or so. Really though, the dead guys should go first.

    Unless you think they have the most to lose?

  70. seehearbrian says:

    #98 Sluggo

    Death + 0 years seems just as arbitrary as death + 90 years. It’s also a slippery slope. If a copyright should lapse just because the creator/copyright holder bites the dust, I can easily foresee a situation where thousands of fanboys descend upon Skywalker Ranch to “free” Luke and Anakin so their “true” stories can be told (and sold).

  71. DaveM says:

    Thanks for providing your opinion here Nina, but I have to question your logic.

    If you are soliciting donations, you clearly believe your film to have value, which suggests that the use of the music does have value. So why are the right holders of the music not entitled to their recompense? I’d agree that the valuation is astronomical, but they are merely taking advantage of the fact that you created a valuable product out of abuse of their copyright.

  72. BingoTheChimp says:

    Those who insist otherwise are greedy, or just crappy artists.

    1. This kind of, uh, “argument” probably doesn’t deserve a response, but here goes: I wish all the folks who are posting responses based on their subjective opinion of a) Nina’s movie, b) the importance of film vs. music or vise versa, c) the quality of 80-year-old music vs. newer music, etc, would try to understand the distinction between legal/fair-use/apples-to-apples reasoning and subjective arguments.

    2. The folks who think copyright should expire upon the death of the composer — well, I disagree, but you can surely make your argument without condemning the IP holders who simply use the existing law in good faith until such a time as you get it changed. You aren’t helping your case by calling us “greedy” just because we disagree.

    3. @78 My pal who was the music supervisor found new songs for everything, and arguably the film is better for it. Especially since it never would have seen the light of day otherwise.

    What you are proving is that the current system can work as intended: you balked at the license fee and used something else. The license holder may have made a bad business decision in quoting a high price, but that’s a different issue. It’s not an argument for forcing license holders to lower prices or give up rights. Remember, that film was your project, not a cooperative among the entire creative community where you can expect everybody to pitch in for the cause. What’s important to you artistically may not be important to me and vice versa.

    I think a large number of people have the attitude of an MGM musical. “Hey, I’ve got an idea for a show! Jimmy has barn, Sally will sew the costumes and Biff will write the music!” Well, that’s nice, but you better make sure Biff and Sally are interested in devoting energy to it before you paint the barn, sell tickets, and then cry that Biff is the bad guy ruining the masterpiece because he’s not interested or charges too much.

  73. aTanguay says:

    What an incredible shame…a perfect story of an astoundingly broken system. Broken in every way.

    Should she have really considered the rights issues before going forward…probably. Is it an absolute crime that she is now completely forbidden to even show her tiny film…absolutely.

    I highly highly doubt that anyone who composed or performed this original music would want this done in their name. I find it very hard to believe they wouldn’t be flattered to see their essentially lost work rediscovered by a new generation in a new way. And if they were still alive would probably be happy with a compensation that is fair for the size of the project.

    Like she says in her interview…the only way future generations will see her work or any small time artists work is if it isn’t handed to some insane company to watch over.

    Oh, but you bet your sweet ass that two or three more ugly and pointless ‘Shrek’ sequels are on their way, loaded with all your favorite ass-pop hits like ‘Living La Vida Loca’!

  74. Avram says:

    MRJM @23, please try not to be the guy in the civil rights thread who arrogantly and offensively spouts off about how the victim had it coming. Also, no sigs.

    Anonymous @10

    , yes, this is an “amateur” problem. The question I think is important is not Should artists do the necessary research to make sure they can legally profit off their work? — Obviously they should. The meaty question, the one we should be asking as citizens who supposedly have influence over our lawmakers, is How complicated should we allow those laws to get? How high do we want the barriers to be for amateurs making their first films? How many difficulties, on top of the difficulties inherent in mastering a craft, should we pile on to the people who want to entertain us?

  75. TharkLord says:

    I’ve been following Nina’s work for quite some time, going way back to the “Nina’s Adventures” comics. She is a wonderful artist and I regret she is going through this. The “dog in the manger” mentallity of a copyright system that has unnaturally extended the lifetime of copyright is doing a diservice to many artists. As an artist myself, I strongly advocate artists being paid well for their work, but this example has nothing to do with that.

    One thing that hasn’t been mentioned is how this system could be causing the loss of many singular artworks. There must be thousands of unique works of music that only exist on 78rpm records. If someone finds a rare work and copies and distributes that work is that theft or preservation? Must they keep that disk around for another generation and hope that nothing happens to it before it enters the public domain?

    I while back I found a 78rpm studio recorded transcription of an old radio mystery from the 40′s. From what I have been able to find from my research this may be the only copy of this radio show in existance. If I make an mp3 of that show and share it with others does that makes me a criminal because that show was based on a mystery novel that is still protected by copyright? Do I need to hire a lawyer to find out if I am vulnerable to a lawsuit?

    It’s as if that work no longer exists as a means to provide enjoyment to people and inspire other creative individuals but has become simply an opportunity for litigation.

    Many thousands of people have now had the opportunity to enjoy Annette Hanshaw’s work because Nina Paley used it in her film. Would it be better for the music to be forever relegated to obscurity and the artist forgotten?

  76. Kieran O'Neill says:

    #27: DWES: “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’?”

    RTFA. RTFA. R.T.F.A.

    For your edification, in case you couldn’t be bothered to even scroll up to the link, here it is.

    She cannot legally make money from distributing the film. The restrictions imposed on her make that impossible. Hence the CC distribution of the “promotional” disc. She is hoping to make a small amount of money back from merchandise (and probably donations) to cover the time and effort it took her to create the film. It is highly unlikely she will ever “profit” from that, as profit implies excess over outlays.

    She is deeply in debt and being exploited by a heartless, money-grabbing film industry. That sounds like an artist to me.

  77. waugsqueke says:

    A lot has been said about the life status of the composer in this thread, but that is a missed point. Why should that have an effect on whether a particular composition retains rights to earn fees? Nor should it matter if it is an individual or corporation that owns the rights. It is the piece, and use of it, that earns the fee. The rest (living vs dead, individual vs corporation) is just sorting out what happens to those fees. Completely irrelevant.

    Nina, are you sure you want to make this an argument about unconstitutional laws passed by Congress? If so, you’ve completely lost me on this. You may have a good film here but I question why you would want to martyr it in this manner, why it would be worth that to you.

  78. JmarD says:

    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?

  79. Ian70 says:

    #6: just BitTorrenting the movie isn’t the answer.

    This woman has put three years of her life into making this film: she deserves the right to be properly compensated for that work. It’s marvelously unfortunate that the music licensing costs are prohibitive, for now anyway. It would be even more unfortunate if her work was simply “let loose” onto the internet without her actually gaining anything for her efforts.

    In our “modern” age of take-take-gimme-gimme it has somehow become okay for people to enjoy others’ work and not compensate them for that work… and somehow not lament doing so. It’s a sad fact but it’s a fact. Only by changing our own habits, by fairly compensating those who’s works we use and enjoy, can we be certain that they will get to create even more works in the future.

    I sincerely hope that some kind of arrangement can be reached with the controllers of the original work so that this new art can be seen and enjoyed (and duly paid for) by the public.

  80. Anonymous says:

    Let me add the works of Annette Hanshaw to the list of media that I refuse to consume. Greedy progeny do not an empire make, it is through continued creation through the ages…not some greedy great grandchild demanding money for the work of someone they probably never even knew.

  81. Anonymous says:

    i don’t know any artists that would mind if their works were ‘stolen’ (used without permission) after they died.

    to those that say she should have secured 200,000$ before starting her solo art project… well, i have nothing to say to those folks.

    heck it’s bankrupting her even to try to negotiate, even to TALK to people about securing the rights. the rights holders won’t talk to her without ‘proper representation’.

  82. atomicelroy says:

    This is such a tired argument.

    Yes it’s unfair, yet the arguments seem quite sophomoric, as some one who “manipulates electrons and calls it art” there are lots of things that I’d love to use in my work that are off limits, that would work perfectly to communicate the concepts I want to communicate, yet I did not create them, so I cannot use them. A simple limitation.

    Limitations breed creativity.

    Use different music.

  83. operator99 says:

    From what I glean from the interview, she was inspired by the music, with it perhaps even being the driving force for making the film. With that in mind, and it being such an integral part of the film, it is a big oversight not to delve into the rights issue before making it. I suppose if the music was incidental and not such a large part of the overall artistic work, and it was not done for profit initially, then I believe the fair use doctrine would apply. It’s a shame, but I think within the next few years these issues will find resolution, so that the involved parties are properly compensated.

  84. atavist says:

    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?

    Same-same.

  85. Alessandro Cima says:

    #122 Anonymous,

    That’s very cool. #47, I mean. I like that. It doesn’t solve the problem, it just renders my obnoxious little example a moot point.

    Ms. Paley is more generous than the music’s copyright owners. That alone should make her feel good. If I owned the music, I’d give it to her. But I don’t and there’s really no use in fretting over it.

    It’s all sort of silly. The rights are not hers. She needs some other music or needs to make a deal with the rights owner. That’s it. Beg. That might work. Maybe it’s a little old lady collecting checks now and then. She might take a cup of tea and give her permission. Who knows?

  86. kfogel says:

    #3, #10, #14:

    Nina’s point is exactly that you shouldn’t have to ask permission to use pre-existing material.

    “Owning” a song is not like “owning” a pair of pants. When you own a pair of pants, that means you decide who wears it, which is good, because only one person can wear it at a time — if someone else is wearing it, then you have to wait until they’re done.

    But songs (and books, and other copyrightable things) don’t have to work like that. Nina isn’t monopolizing this music by using it in her film. She doesn’t hurt the originals, or interfere with other people using the same song in any way they want. So why should she have to ask permission?

    “It’s the law” won’t do — it’s a circular answer. She’s arguing that it’s a bad law and should be changed. (And note that “ownership” here is not about credit: she gives accurate attribution to the composers and performers, and is not arguing that she shouldn’t have to do that. This is purely about making a copy and doing something with that copy.)

    These laws are quite recent, too. For most of human history, people were free to make copies and to do what they wanted with their copies. Copyright was invented (in the early eighteenth century) primarily to support and regulate the printing industry, to ensure a sustainable distribution mechanism for printed material. Now that we have an Internet, though, that old regulation is starting to be problematic…

    By the way, Nina has said many times that she’d be very happy for people to make remixes or derivative works from her film, and no, they don’t have to ask her for permission first. She doesn’t believe people should have to ask for permission to make copies, and to do what they want with their copies. After all, what I do with my copy has no bearing on what you do with your copy.

    #21:

    Come one :-). Artists create to communicate. If they’re not going to be allowed to distribute what they create, they won’t create. Your distinction is spurious.

    #23:

    Nina’s fighting a government-granted monopoly right, on the grounds that the monopoly is unjust and interferes with artistic expression. Which it does. I don’t understand what that has to do with solid gold movie screens. Gold is an expensive medium that requires great physical effort and resources to work with, so the scarcity there is real. But the restriction on this music, on the other hand, is an entirely artificial scarcity — it is imposed by statute. Take away the statute, and there’s (literally) no more scarcity at all.

  87. gpeare says:

    We’ve been following Sita Sings the Blues for a while now on Ukulelia. See today’s post for links about Annette Hanshaw and the music (including both sheet music and free song download links).

  88. kfogel says:

    #32:

    Yes, poor quality films should be allowed to use material too. Censorship is just as noxious when imposed on bad speech as on good.

  89. Alessandro Cima says:

    Just thought I’d mention that as a result of muddles of puddles forming in my brain over this problem with Ms. Paley’s movie, I’ve been reading Lawrence Lessig’s ‘The Future of Ideas,’ which is a freely available Creative Commons book. It seems very much directed at the environment surrounding this ‘copyRight vs. creatRight’ issue.

    He does mention that there is a common sense need for copyright protection, but he is going after the general culture of control and protection that stifles the creative freedom that marked the early Internet. So far, I cannot really find a good reason to object to business people making the money from the compositions of a dead person. It is quite possible the dead composer would have wanted such a continuing stream of nondescript persons to earn a living from her music. And I cannot possibly think that the copyright has in any way stifled Ms. Paley’s creativity or that of anyone else. The movie’s been made and will forever exits. F.W. Murnau’s ‘Nosferatu’ was basically a pirate version of Dracula that was banned and suppressed by copyright, yet it exists in all its glory to inspire nearly 100 years later.

  90. kfogel says:

    #35

    Yes, she’s okay if you “take her animation and write my own music to go along with it, and show it at animation festivals”! Really, she is. Ask her!
    Nina Paley doesn’t want to be a censor either.

    Why is it so hard for people to understand that there are artists out there who truly support freedom for everyone? :-)

  91. Anonymous says:

    Queensissy,

    Nina Paley is already aware for the PBS option. According to her blog, at least one PBS station has already expressed serious interest in broadcasting her film.

  92. waugsqueke says:

    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.

    Bingothechimp has it right in #61.

  93. Pugzz says:

    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?

  94. travispulley says:

    I watched the interview and it just occurred to me – can’t she just distribute the film without the music, then have her audience supply their own copies of the song to play in sync?

    It’s really not that hard to do; call it added performance art.

  95. Anonymous says:

    #121, see #47.

  96. RevEng says:

    Let me start by saying I’m not an artist, or at least not in the traditional form. I’m a programmer, and I get paid by the hour for my artistic talents. Which makes me wonder why artists of all sorts seem to expect to be paid perpetually for something they did some 30 years earlier.

    Like 99% of the people out there, I have to work day in and day out to make a living. I may have worked to create a masterpiece over the last 6 months, but I won’t see any additional renumeration for that aside from the 6 months pay I was given then, and that’s fine. That’s how almost everybody in the world is paid: one day at a time.

    Clearly not all artists are paid day-by-day for their work — they invest several months into it and sell it off either wholesale or slowly at the end. However, it’s fair to expect that they eventually be paid back at a similar rate.

    This goes both ways. Artists should be compensated for the effort that goes into their works, but they shouldn’t expect anything beyond that. The fact that some people seem to expect an artist’s grandchildren to be compensated for their grandparents work baffles me — my children will never have the luxury of benefiting from my day-to-day labours, and certainly not after I am dead.

    Copyright was originally instituted to encourage artists to produce works. This was at a time when distribution was becoming powerful enough that a third-party could replicate and distribute an artist’s material before the artist ever had a chance, leaving them entirely uncompensated for their work.

    Unfortunately, copyright has evolved into something greater. It’s no longer enough to protect something from being blatantly copied, now copyright protects things from being used as source in further works. Whereas copyright was once used to encourage artistic expression, it now stands in the way of it, a legal minefield between ideas and expressions.

    Nina’s case is quite exemplary of this. Her ideas were closely related to the source material, such that there is no reasonable way for her to workaround using them. So she’s stuck with a choice: give up all of her possible renumeration (as the terms set before her essentially left her with), or scrap her idea entirely. In this case, copyright has essentially killed an idea that it was supposed to be encouraging.

    I make a clear distinction here between copying and derivative works. Copyright was meant to prevent “pirates” from limiting an artists ability to receive profit by reproducing and selling the work for less than the artist was asking. It’s the same principle as happens with currency — bad money replaces good money, because the inherent worth is the same, but the price is lower.

    A derivative work is something more than a copy — it has its own value in the derivation. In it’s most basic form, consider Andy Warhol’s Campbell’s Soup cans. One could argue they are just blatant copies of the original cans — something designed entirely by other artists. On the other hand, the painting itself is considered a major, influential work, implying that it carries a value greater than the images of the cans themselves.

    Now take Nina Paley’s case. Not only is she using songs that are over 80 years old, but she is adding quite a lot to them. She is at once both showcasing her own cartoons as well as showing an appreciation for the original art. It would be difficult to argue that she is somehow profiting from the original art, blatantly copying it as a means to collect for the value of the original work. Instead, like the Campbell’s Soup cans, these songs are the source which her work is built upon. By her making this film, she has done nothing to prevent the sale of the original songs, nor to devalue them. In fact, if her film is successful (as it already appears to be), it will increase the value of the original music.

    Basically, copyright law has failed in this case. It is doing nothing to protect the value of the original artists work and it is discouraging the production of other artistic works. All this because there’s an entire industry that seems to expect to make money perpetually off of a single work.

    This isn’t how our society works. People get paid day-by-day. Ideas can’t become money-printing machines — it devalues the daily work that the rest of us do. These songs made their creator fair compensation in her time. There’s no reason that 80 years later anybody should be demanding payment for that same work. Copyright should be encouraging Nina to produce more now, not rewarding those who produced years ago.

  97. Nina Paley says:

    Thanks Cory, thanks commenters.

    Please read Sita’s Distribution Plan, in which I explicitly state my intention to release the film under a Creative Commons Share-Alike license, also known as copyleft.
    I am trying to clear the music licenses simply to indemnify the audience, so that they may legally copy, share, and otherwise distribute the film. Otherwise, only those willing to break the law (dumb though the laws may be) will participate, making the distributed-distribution experiment much less interesting.

    @#32
    “what about all the things on youtube that are made without permission from copyright holders? Shouldn’t they get this kind of sympathy too?”

    Yes, they should.

    @#33
    I believe the audience is capable of “properly compensating” me for my work – voluntarily, and without an exclusive distributor acting as intermediary. It’s worth a try, anyway, and I have nothing to lose, because the existing commercial model of film distribution is pretty broken.

  98. Anonymous says:

    Nina Paley has already released her plans on how to distribute the film after Roger Ebert’s blog entry about her: http://blog.ninapaley.com/2008/12/28/sitas-distribution-plan/

  99. Ryan Waddell says:

    Pity. To those artists proclaiming how she should’ve done her research, blah blah blah – the music was created (and composed?) in the 1920′s! I’m sure you’ll be thrilled if your great grandchildren can continue to make money off your hard work that you do now, but in a more realistic world view this is pretty ridiculous.

  100. igpajo says:

    I don’t quite follow the copyright restriction? When they say the compositions are still restricted, does that mean the actual music on paper, or the arrangements of Annette Hanshaw and her musicians? Would it be possible to have someone else record covers of the songs and try to match Hanshaw’s timing and style as close as possible in an effort to sidestep this and get the film released?
    Can’t believe the people who are holding those copyrights would be such bastards about this. It’s quite possible that if the film does well, they’d see an increased interest in Ms. Hanshaw’s work.

  101. shutz says:

    JJR1971:

    Great story. The main thing I got out of this is how the music industry are missing out on one more revenue stream that could help them stay afloat instead of them crashing and burning and sinking like they’re doing now: small-scale licenses, which could be sold right off their website, in a completely automated manner. Then, if you end up using a particular song, you just pay the fee, and it gives you a license number that you must insert somewhere in your work, to prove you have such a license.

    As for the main story: yes, it was wrong of her to use music she knew she didn’t have the rights to (although the fact that the recordings were out of copyright may have been confusing enough to consider it a extenuating circumstance) but the rights holders were (and I believe, still are, even after the “deal” they gave her) being extremely greedy.

    Stupid, even, as they could have simply asked for a percentage of whatever the film earned through wide release, which would be proportionate to whatever worth the film derived from using the music. They might even have made more money than they’re making now, if things went well.

    The problem is far deeper than that: both the music industry and the film industry, especially in America, have such ingrained capitalist (of the bad kind) tendencies that most people involved are out to screw everyone else out of as much money as they can, so when an honest amateur or outsider comes in with a reasonable deal or project, they immediately think they’re being screwed, and do everything in their power to make sure they’re the ones doing the screwing instead.

  102. Piper says:

    @#35 —my thoughts exactly.

    She admits that she knew all of this before even embarking upon this project, and says it was never meant to be a commercial product.

    Sh mght b wndrfl flm mkr, bt sh sms t wr th rtst’s mntl nly whn t sts hr, thn plys th whnng cync whn sh fnds hrslf trppd. Sh xpnds pn hr brvry n th fc f ths wh ctnd hr bt ths, bt nw sh cts ttlly prplxd tht r crppy lws pply t hr s wll.

  103. Anonymous says:

    To many commenters who suggested that Nina should try to get donations: she did. That’s how she raised enough money to get to the festivals. (I myself contributed $2000 towards making a hardcopy film version.) Even so, she’s had to go relatively massively into debt.

    Her donations haven’t been enough (yet?) to fund widespread distribution. Maybe with the increased publicity, she’ll be able to make it, but it’s a lot of money.

    Another film that faces the issue of copyrights is _Eye on the Prize_, a critically-acclaimed film about the US black civil rights movement. They only got rights to newsreel footage for a limited time (because they couldn’t afford the unlimited rights). Those have expired, so it is now (nearly) impossible to see this important film.

    Perhaps we need a non-profit whose only mission is to buy the copyrights of culturally-important works. Once purchased, they would go into the public domain…

    @TODDBRADLEY, #124: Nina paid for rights for the festival circuit. Those rights cost less than the rights to do a widespread release.

  104. Doug Nelson says:

    You’d think she’d have done a little research first.

  105. fuelafire says:

    I desperately wanted to use one obscure old music recording from the 1930′s for the credits in my animation film “Happy & Gay” but I made every effort to find out if the recording, composition or score was under copyright ownership, AND IT WAS. They wanted $1000 just for me to run it for approximately 1.5 minutes during the final credits at “low” volume, not in “synch” with any animation. I made the decision NOT to use it. For my film overall, I had a composer and I paid for musicians and the recording studio time, a sound engineer, hotels, food and everything so I wouldn’t be whacked with any copyright lawsuits. I wish that Nina, an experienced filmmaker, hadn’t been so in love with this music that she neglected to do her homework and protect herself and her work.

    Music copyright law is SO out of control (thanks Senator Sonny Bono!) in how long it lasts, which is up to 70 years in some instances. The lawsuits that are happening with kids and parents being sued for thousands for “illegal” downloading of music is the tip of the iceberg melting, I think. Creative copyright is a whole other animal in this day and age. Digital exchange changes everything. Creative Commons is a great way to conceive of how ownership and sharing can exist simultaneously.

    • Antinous says:

      I wish that Nina, an experienced filmmaker, hadn’t been so in love with this music that she neglected to do her homework and protect herself and her work.

      I have a hard time with that sentiment because it insists that artists have to be business people before they can be artists. Think about a world in which art is only created by people with business acumen. Pretty depressing, eh?

  106. BingoTheChimp says:

    @#107

    This isn’t how our society works. People get paid day-by-day. Ideas can’t become money-printing machines — it devalues the daily work that the rest of us do.

    I respectfully argue that society does not work exclusively the way you state. Some economic models work that way (called “work for hire” in the music biz) and some don’t. In the latter case, the artist often (though admittedly not always) receives NO money up front, with the expectation they will be paid over time via royalties. That is a big risk, which I think justifies a bigger return. We could argue about the degree, but I think it’s important to get the concept.

    In your case, try going to work as a programmer, collecting NO salary, and wait for your cut of the profits to roll in. I think you’ll find it’s hard to pay the rent even as you work your diligently every day, so I hope you are collecting royalties from a prior job, and so on and so on.

    Nobody is trying to work once and get set up for life, resting on their laurels.

  107. cwclifford says:

    BingoTheChimp @ #61 – Just have to say you hit the nail on the head. A real world example of how things work.

    Nina, I understand it is difficult to accept that art does not trump commerce but it is also difficult to accept an artist who is adverse to this same commercialization.

    For what it’s worth, it is perfect timing to start up a PayPal donation to raise funds for the license. Hell, if people can get complete strangers to help pay off their credit cards then their shouldn’t be a problem getting this film free for all of us to enjoy!

  108. Kieran O'Neill says:

    #35: Depending on which CC license Nina uses, your right to do just that will be protected by law.

    (At least the remixing part. The whining part is already protected under free speech laws in most countries.)

  109. allen says:

    I think all the anti-artists posts are pretty obviously by people that have never really done art, but then again- to be fair, the article really kind of assumes consensus with its’ viewpoint, rather than building it.

    So:
    It’s RIDICULOUSLY HARD to “do your homework” beforehand. As the artist said, she had to hire lawyers before she could even find out whether or not the material was still under copyright.


    I wasn’t even aware that there was a way to keep a copyright active after 80 years. I basically just assume that copyright will be continually extended to protect Disney, and therefore anything pre-disney is fair game. I guess I need a new rule of thumb.

  110. dculberson says:

    How much is “a lot?” I think it would help her cause – and help shame the copyright holders – if she disclosed how much they were asking.

  111. travispulley says:

    okay I lied – I was in the PROCESS of watching the interview when I wrote my above comment. She talks about the sync idea about 28 minutes in and talks about “sync rights”, which I think involve her original intent to have the music incorporated with the finished production.

    She talked about releasing a “soundtrack” along with the animation that the end viewers could sync, or even have some software that can do that for you. She left off the idea with a pessimistic resignation that someone would be sued regardless.

    I still think it’s a good idea.

  112. RevEng says:

    I see a lot of people arguing about this from the point of view of current copyright law. Clearly, nobody in the article or arguing for Nina’s cause is saying that should be legal according to copyright law. Clearly, it isn’t. What is being argued is whether this is “fair” in terms of who it benefits and for what reasons.

    Bingo and Waugsqueke, this relates to what you said before. According to copyright law, the artist’s situation, the age of the work, it’s popularity — none of these things should matter. But as is clear from the arguments, many people think it should matter. The fact that a rightsholder can benefit greatly from a work produced 80 years previous by somebody else may be common place in the copyrighted world of art, but it’s entirely illogical from an economic point of view. It’s even stranger when you consider copyright’s intention to encourage the production of art. If you consider that most art (arguably all art) is derivative of previous art, then allowing rightsholder to demand any compensation they please to use previous art stands in the way of producing further art — the exact opposite of copyright’s original intentions.

    It’s cynical to say, “this is what the law says; live with it.” Laws are in place to make society better for all of us. If many people feel that copyright laws are hurting more than they help, then it’s entirely fair to say, “change the laws.”

    Granted, as long as the law is in place, we must abide by it. Thankfully for Nina, it seems she’s found a way to abide by the law and still allow her work to be seen, even if she can’t guarantee an income for it.

    Nina, I’d start that donation box if I were you. I’d be happy to throw in something to help make this possible.

  113. halcyongoddess says:

    Saw this at a film festival. So sad that it can’t be shared with others. Is there no room for negotiating the licensing for the songs or is it set in stone?

  114. Nina Paley says:

    #35 atavist
    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?

    OK, except you won’t need clearance under the film’s Share-Alike license, so you’ll have to find another reason to whine. As long as you attribute my work to me, and distribute the derivative work under the same license, it’s all good.

  115. gobo says:

    Honestly, folks. If you’ve commented on this post with something akin to “she should’ve done some research!”, you DID NOT READ THE ARTICLE, your comments are invalid, and you are a fool. Try again. Try harder. Give the artist some credit.

  116. queensissy says:

    Thank you, #10 and BingoTheChimp. I’ll preface this by saying I work for a music publisher, but I also am a fan of Creative Commons when it’s appropriate.

    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.

    Yes, this music is old, but in some cases the writer is not “long dead” – Fred Ahlert, for example, a co-writer of “Mean to Me,” died in the past five years. I don’t think the fees noted for all media are reasonable for a project of this nature, but I do feel his children have a right to collect some sort of income for their father’s contribution to Nina’s film if she distributes this.

    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.

  117. BingoTheChimp says:

    @REVING

    I’m actually arguing both the “legal” and “fair” points, but I appreciate you pointing out the distinction your well-thought-out comment :)

  118. Anonymous says:

    Why not bitorrent it and we can all see her work? or perhaps work a deal where the cc holders get a percenage of the films earnings???

  119. Anonymous says:

    The obvious solution is to bypass the typical “distribution” channels and use this here newfangled Interwebs thing I keep hearing so much about. Look, I’m sympathetic that she can’t monetize her dream, but let’s not pretend that she can’t release her movie.

  120. Anonymous says:

    I, too, am confused – what does composition vs. recording mean for her film? If the recordings are public domain, why isn’t that the end of it? Who cares about the technical “composition” of the work?

  121. gtron says:

    “Artists create to communicate”… in 2002 I had a wild hair up my butt about copyright law (free kevin! and all that) and so I made a film that i knew was “illegal” and posted it to the net solely to make a point that we should be talking about reform, at least. It is called “The Infringement: A Comedy in One (dmc)Act” – it includes a sample from Blade 2 that was nabbed before the cinematic release (guess where I got it), and slipped into the timeline of my already finished movie that was awaiting this clip, and then quickly posted the finished short film to the net THE SAME DAY that blade2 came out in cinemas… the clip in question has Blade shooting the vampyre who snorts dried blood, and this ‘extra/actor’ was the central figure in “The Infringement” (that is, i used the actual same actor, and was able to prepare/shoot/edit my movie in the time between production of and release of Blade2)…
    i was scared sh*tless, as i am certain noone had done this before, and I was going to pay the price when they caught me as the “example set”… guess what? nothing happened.
    search for film # 2170544 on Vimeo if you want to see it (15minutes – Wesley is in around9-10th min?)… didn’t want to self promote, only want reform, so i laid out my best shot at the time for my abilites/resources… that’s what we have to do

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