Killer of Sheep: A cautionary music rights tale

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78 Responses to “Killer of Sheep: A cautionary music rights tale”

  1. Church says:

    For another doco on archaic copyright ideas meeting the modern world, see Steal This Film.

    Also, another nod to mzed up there.

  2. neWWave says:

    Copyright issues aside, real filmmakers like Burnett will always struggle to get their movies made let alone have theatrical runs, or DVDs in print so long as folks scarf down junkfood like Avatar to the tune a billion dollars and counting. The American film industry is so embarrassing in this regard. If they occasionally took a chance instead of repackaging the same stories over and over again ad nausea, they’d find that stories that don’t require a bigger and more expensive roller coaster ride built will also find an audience and make a modest profit. Thank you Milestones for giving me the chance to see Killer of Sheep.

  3. adamnvillani says:

    There being no legit 35mm or 16mm (and to my knowledge, at the time DVD) versions of the film available,

    How long ago was this? I ask because while I know UCLA restored it and put it on 35mm in 2007, I saw it at UCLA’s Melnitz theater sometime in the early 2000s (double feature with Murnau’s TABU, with Burnett in person) on 16mm and it seemed fine to me. Did UCLA restrict that print’s use, or was it not available or not in good condition or something?

    • Marshall says:

      adamvnillani –

      How long ago was this? I ask because while I know UCLA restored it and put it on 35mm in 2007, I saw it at UCLA’s Melnitz theater sometime in the early 2000s (double feature with Murnau’s TABU, with Burnett in person) on 16mm and it seemed fine to me. Did UCLA restrict that print’s use, or was it not available or not in good condition or something?

      Probably 2004 or 2005. I’m not sure if UCLA had full commercial rights for that 16mm copy they showed in the early 2000s. The only (legitimate) distributor we could find was an educational film company who wanted an ungodly amount of money for either a VHS or 2″ Beta version.

      Usually a film costs about $300 to rent for a showing. Because we wanted to show Killer of Sheep in a non-educational context, they wanted a pile of money (well over $1000) for the rental. Add the cost of digital projection equipment for a theatre of that size and we were looking at a film that cost 600%-800& more to screen than thousands of other films.

  4. Anonymous says:

    What I don’t understand is why don’t these independent film makers when they want to do a theatre release simple take the music that has a problem to an independent music group and say here can you make us a song with the same feeling and sound as this track.

    And use that in the theatre release.

    And im not saying rip the song off just get one that is inspired by the one originality used.

    Silly to waste 30 odd years when there are alternatives available.

  5. Thad E Ginataom says:

    Not to clear the rights on other people’s artistic creations is just unprofessional and possibly unethical too.

    No sympathy for any film maker that does this and gets clobbered: they deserve it.

    • Tynam says:

      Thad: You’re assuming that it’s easy, or even possible, for an indy film maker to clear the music rights. Often it isn’t. The music industry it’s now such an inbred mess of conflicting licensing of different rights to the same song multiple times to different organisations that it’s frequently possible to license the music and just not know that you haven’t got it covered until the lawsuits arrive.
      Bad Lieutenant is one example, but by no means the worst.

      Also, prices are set by big labels, for big-studio hollywood releases – so the cost of licensing even one song can be more than the entire expected net of the movie. So sometimes the only way to add big-label music to an indie movie is to go ahead in production and then pray somebody’s willing to sell the rights at a sane price when it’s time to distribute.

      The answer, of course, is not to use big-label music at all. But that only works if you can use modern bands, post-internet bands; older music is all big-label. Sita Sings the Blues is the obvious case in point.

    • arkizzle / Moderator says:

      Thad, that may be true in a general sense, but clearly isn’t what happened in the case of the Bad Lieutenant.

    • davidrice says:

      I agree with you Thad. And it’s really of no relevance whether it’s easy or possible to clear major-label works. A filmmaker’s skill set must include the capacity to weigh artistic considerations against financial constraints, and to creatively solve one problem or the other.

    • BritSwedeGuy says:

      Do you seriously think anyone went to see either of these films on the basis of a piece of music being used in them?
      Sure, it may be impolite to not try to contact the ‘rights owner’ but it’s hardly worth having another piece of art destroyed for.

  6. Anonymous says:

    Artists, of any kind, must produce all of their own content.
    That’s the whole point of artistic creation.

    If the filmmakers cannot play any instruments, they can kick trashcans down the street and use that as the soundtrack.
    I’d prefer that to Led Zepplin any day.

    If they want to use another artists work, they have to pay for it.

    • Antinous / Moderator says:

      Artists, of any kind, must produce all of their own content. That’s the whole point of artistic creation.

      Do you require the musicians to build their own instruments as well?

  7. Anonymous says:

    “Luckily, this has led to many more independent filmmakers seeking out tracks from unsigned musicians for much more reasonable terms.”

    Exactly. Thanks to the magic of the free market, if one service provider becomes too onerous to work with, then another vendor can pop up and offer better service.

    Filmmakers could work with unsigned artists as mentioned above. Or they could buy stock music, which is music professional musicians make specifically for commercial use in movies, ads, flash videos, etc. Or they could put out a call for music and offer payment only in “exposure” (which is cheesy, but I know at least one of the recent nerdcore documentaries did this).

  8. turnstyle says:

    I don’t get it: the film was made in 1977, but Schoolly D’s “Signifying Rapper” didn’t come out until 1988 — so when exactly did Mr. Burnett decide to add “Signifying Rapper” to “Killer of Sheep”?

    imho, Charles Burnett wanted to use Schoolly D’s “Signifying Rapper” for the same reason that Schoolly D wanted to use Led Zeppelin’s “Kashmir” — because those others’ works were perceived to add artistic value.

    Are you suggesting that there should be a compulsory for sampling and use in movies?

    • jeligula says:

      @ Turnstyle. You didn’t read the copy very well. Signifying Rapper was used as an example in a different film made in 1992.

  9. Anonymous says:

    Britswedeguy said: “Do you seriously think anyone went to see either of these films on the basis of a piece of music being used in them?”

    Nope.

    But since you claim the music is, in these examples, not particularly important to the desire to see the film, it’s odd that you then say “so why not just let them use it?” rather than “so why not just remove it from the film?” …

    The latter follows even more logically from the “it’s not important to the film” premise, right? It not only doesn’t really affect people seeing the film, but also respects the music rights-holder’s interest in the music – the former abrogrates them every time someone wants to put incidental music in a film, purely for the filmmaker’s convenience.

  10. David D. says:

    Turnstyle: Schooly D–Bad Lieutenant. Killer of Sheep had other music rights issues.

    And yes, student films, festival/art films and many documentaries are caught in gigantic rights traps when it comes to use of popular music, archival photographs and footage and other copyrighted material. Rights owners (which are usually *not* the creators of said copyrighted material, and which are not interested in rational discussions about the true value of their material when referenced within other works) think they have some sort of gold mine on their hands and ask for wildly disproportionate royalties, effectively killing or shutting away whatever projects are involved.

    I worked at a small publisher many years ago where one of the books on our slate was prefaced by a one-line quote from Stevie Wonder’s ‘Superstition’: If you believe in things you don’t understand, you suffer. Like responsible people, we inquired about permission to use the quote. The rights holder wanted to charge us $15,000–which broke down to $15 for each book in our 1,000 book print run. (Cover price: $9.95) We said fuck it, and used the quote without permission. (Insert debate about Fair Use here.)

  11. turnstyle says:

    oops, I retract: I now see it was “Bad Lieutenant” rather than “Killer of Sheep” that used “Signifying Rapper.”

    Am I correct to think that Abel Ferrara secured rights to use “Signifying Rapper” before he released the film? (ie, even if the rights later proved invalid, was he told he had them?) — If so, then why isn’t it similarly fair to expect that Schooly D should secure rights from Led Zeppelin?

    Again, this seems to come down to whether you are advocating for a compulsory for sampling and/or use in movies.

  12. zwingli says:

    As well as being plain difficult to find out how to secure rights, and where they’re secured for, there’s the question of relative value. Okay, so including a snippet of a song (and it’s almost never the whole lot) may add artistic value to a film, the question has to be how much?

    There’s also the issue of fair use – if you see music as being zeitgeist shaping, shouldn’t its use in the background be fair use?

    From the musician’s perspective – does inclusion of a snippet add or detract to the possibility of someone going out and acquiring the full work, becoming an enthusiast, and ultimately spending money with them? I’ve lost count of the number of artists who I’ve gone and bought works by (and note the verb) on the basis of hearing their material in a film, TV show, or ad. The fact that this is a two way, possibly symbiotic, street should be recognised.

    This leaves completely aside the whole issue of how creativity works. If this was the 18th century the teenage Mozart would have been prevented from hearing Allegri’s Misere, writing down his take on it, and popularising one of the most beautiful pieces of music imaginable – equally how much of Mozart’s oeuvre could be seen as being derivative and thus subject to the whim of the rights holder (the Vatican)?

    Not convinced the music industry is doing itself any favours here.

  13. Anonymous says:

    Another VERY good reason for LIMITED copyright terms, as the constitution says, not 95 years. Under the original copyright act, this music and film would be public domain.

  14. rwmj says:

    “Nothing Lasts Forever (1984)” is another awesome film that never saw the light of day (at least, not legally). The reason appears to be because it contains clips from obscure 1930s public information films and music which couldn’t be cleared, quite probably because no one know who owns those clips any more.

    Man the torrents!

  15. angrydroid says:

    “Art,” to the marketing & legal types in the big, bad music & film industrial megacomplexes, is a dirty word.

  16. Anonymous says:

    At some level, people are complaining that the rightsholders* DO have a special, cheap “festival license.” Yes, it would be nicer if they had finer gradations in their fees, and perhaps something between “festival” and “blockbuster.” But student filmakers can usually choose to NOT incorporate somebody else’s work into your own, or to use if only for “in classroom use,” which probably requires no licesne at all.

    Of course if you’re charging for the use of a work, part of that should be indemnifing the person that you’re charging from action because you yourself never had the rights for what you’ve used. So the rightsholder of Kashmir SHOULD have been sueing Schooly D instead of the maker of “bad Lieutenant,”.

    *And whether the rightsholder is the creator, the person the creator SOLD the rights to, or even the person for whom the creator agreed create a “work made for hire,” is irrelevant here. While changing what qualifies as a WMFH after the fact is clearly wrong, deciding that you don’t like the WMFH contract after you’ve signed it is not exactly right either.

  17. Marshall says:

    Back in about 2004-2005, I was programming a Black History Month film festival and we really wanted a rare Killer of Sheep (Watts is in the 15th District of LA, where the festival was taking place) as or primary film, and we couldn’t get it, no matter how hard we tried. It was so frustrating to see how rights issues and the lack of interest rights holders have in the social value of the art they control.

  18. redbearduk says:

    Um… a pedant writes…

    Schooly D did NOT sample Zep. The tune is question is actually just using the riff of Kashmir as a bassline (as far as I remember), so there’s even less ‘ripping off’ going on than you may think.

    • Itsumishi says:

      Are you saying that Schoolly D had someone cover the Kashmir riff? Because if he’s used the riff without actually getting someone else to play it then that is most certainly ‘Sampling’, the very definition of it in fact.

      • redbearduk says:

        Not sure I understand your point. Yes, as I remember, he got someone to re-record the Kashmir riff, rather than loop the original record. Which makes what he did more like Page ‘borrowing’ blues riffs, rather than sampling.

        Agree with your royalty point, but the next question is permission. It reminds me of American Psycho: Huey Lewis found the film objectionable, and didn’t want his music in it. Would it be fair to let him have a say? I’m not sure. I’m of the belief that when you put something out there, it leads a life of its own.

        • Itsumishi says:

          I wasn’t really trying to make a point. I was inquiring whether someone was covering the riff or whether it was the original.

          I agree with you, once you’ve created it and put it in the public eye people will and should be legally able to build upon it.

          I think royalties should be paid where appropriate but I don’t think permission should be an issue.

  19. Anonymous says:

    Some years ago, I produced and directed several educational films. For the music, we simply hired a band run by the friend of my business partner and had them produce some original music, one that “sounded like” a genre and one original song co-written with my partner. For all the music, we paid for the studio time and had a contract that let both of us do what we wanted with the music.

    The “sounds like” scheme is VERY common in commercials, where royalties would drive budgets way up. For example, there is a commercial using Simon & Garfunkel sound-alikes (so much so, it’s rather disconcerting.) An alternative is to buy the music, but not the performance (which are two very different things) and hire a band to do the sound-alike.

    (An interesting side to this is that we test recorded one such song using our lead actress and I still think it sounds better than the original. We can’t release it, however, since it’s using a backing track for which we don’t have clearance.)

  20. aeschenkarnos says:

    This is a clear example of the tragedy of the anticommons. Person A wants to do a thing. Projected profit is $X. Multiple people B, C, D, and E “own” “rights” that will prevent or seriously interfere with the doing of the thing. Each looks at the matter and thinks “I want about 1/2 of $X for myself, or I won’t let it happen because don’t give a shit about anyone but myself.”

    Thus it fails. Copyrights, patents etc encourage dog-in-the-manger behavior. There are multiple solutions to this around, like stronger fair use policies, compulsory licensing, annual licensing for copyrights with a fee based on how much the copyright returned to the rights holder, annual licensing at a fee of $1 with the copyright lapsing if the fee is ever not paid, etc.

    None of these have been adopted, because democracy is itself subject to a tragedy of the anticommons.

  21. jeremyhogan says:

    The acclaimed documentary “Eyes on the Prize” was almost killed off because of rights to some of the music. In this case the film makers did secure all the rights they needed, but some rights had lapsed.

    Some of the rights were hard to track down, some wanted more money, some were refusing.

    One of the issues was members of Martin Luther King Jr’s staff singing “Happy Birthday.” Yeah, we almost lost a great civil rights documentary over someone singing “Happy Birthday”, of all things.

    Another great documentary was almost priced out of the market, “Tarnation.” In that case things like a Pepsi jingle playing on TV in the background during a climactic moment ran a movie that cost $218 (really) into serious budget trouble when seeking distribution.

  22. Anonymous says:

    Well, as the distributor of KILLER OF SHEEP, I have to say that Charles never intended for the film to be screened outside the community so it never really occurred to him to clear the music rights. We spent six years on negotiating with the companies to license the music and though it was emotionally and financially anguishing and we had to turn down bookings during the process, we were happy that it all worked out.

    We had another project, WINTER SOLDIER, where we wanted to use the song Oh Camill as a bonus feature on the DVD (it was written after seeing the film) and not only did Graham Nash grant us permission, he intervened with the publishing and recording companies to give it to us for free. It’s not all horror stories.

  23. alecalec says:

    “Chilling effect”? You might be throwing that phrase around where it don’t belong.

    I never understand these arguments. It’s sad and frustrating, I agree. And who cares about Led Zepplin’s pocketbook. And the music companies are probably only hurting themselves.

    But it’s Zepllin’s music, For example, and they can or should be able to charge what they want. Nobody *needs* a Zepplin song, nobody has a right to expect a ceiling on the price they have to pay. It’s not the minimum wage or something.

    The lesson here shouldn’t be the music companies are mean. This post should be warning film makers to be careful and explaining to them *how* to secure the rights if they can afford what they cost.

    Anyway, couldn’t the film have been released without those particular songs? Did he wait thirty years to release it because he was standing on principle, or because they were so important to the film it wasn’t worth releasing it without those exact particular songs which weren’t his in the first place?

    If I misunderstood something, and I might have, I hope someone will explain it.

    • Itsumishi says:

      But it’s Zepllin’s music, For example, and they can or should be able to charge what they want. Nobody *needs* a Zepplin song, nobody has a right to expect a ceiling on the price they have to pay. It’s not the minimum wage or something.

      They didn’t use a Zeppelin song they used a song by Schoolly D which had a sample from a Zeppelin song in it.

      The problem was that Schoolly D’s record label had never cleared the sample correctly in the first place, so when Schoolly D got sued, part of the ruling required that all unsold copies of the film had to be destroyed.

      Sounds like a lot of bullshit to me, especially given Led Zeppelin were pretty damn famous for using other peoples riffs and songs. (Something I don’t have a problem with, in a band myself and plenty of times I’ve written songs only to realise later that I’ve accidentally chucked a riff I’ve heard somewhere else into it).

    • Freddie Freelance says:

      @alecalec, Led Zeppelin I and II were full of songs that were either derived from or outright stolen from Blues musicians like Willie Dixon, Howlin’ Wolf, Sonny Boy Williamson and others, and Led Zeppelin took credit for writing them until forced to give it back to the original authors. In fact, it took until 1985 for Willie Dixon to get paid for writing the lyrics used for “Whole Lotta Love!”

      Meanwhile, Led Zeppelin are known for suing anyone who looked askance at the cover of a Zep album sitting across the room from them while writing a riff.

      And a third (or fourth) shout out to Sita Sings the Blues.

      • Anonymous says:

        Moreover, to the best of my knowledge, Led Zeppelin have never acknowledged that “Dazed and Confused” was stolen more or less in toto from Jake Holmes. At least some of the old blues guys got some royalties and credit (finally). For the Zep guys to get worked up over someone using a sample of one of their songs in a film (in someone else’s song!) is the height of hypocrisy.

  24. rwmj says:

    alecalec said: “But it’s Zepllin’s music, For example, and they can or should be able to charge what they want.”

    Really? Plant and Page wrote some excellent songs, no doubt, but do they own the music to that extent?

    They probably spent years practicing and listening to the whole corpus of guitar music out there (written by many thousands of folk over the years), and a few hours writing that one song. Human brains enjoyed that music and made it famous. The song only works at all in the whole context of Western, human, rock music. (I know my mum’s cat doesn’t like it — in fact nor does my mum).

    So here we are, all Western, rock and roll-loving humans, creating this giant culture, in which two men’s momentary inspiration lives. Those two men have been amply rewarded for their work (to the tune of millions of $$$ each). Can we now not take that for the greater good of everyone?

    • kmoser says:

      rwmj wrote:

      So here we are, all Western, rock and roll-loving humans, creating this giant culture, in which two men’s momentary inspiration lives. Those two men have been amply rewarded for their work (to the tune of millions of $$$ each). Can we now not take that for the greater good of everyone?

      Not unless you live in a Communist society. Just because somebody has made a buttload of money off their art doesn’t mean you can swoop in, decide enough is enough, and appropriate it for the “greater good”, regardless of how many people like the song. (Although I vaguely remember reading about some court decision in which rights to the Zapruder film were transferred, at least in part, to the US Government.)

    • LILemming says:

      Human brains enjoyed that music and made it famous. The song only works at all in the whole context of Western, human, rock music. (I know my mum’s cat doesn’t like it — in fact nor does my mum).

      My cat isn’t interested in documentaries. I doubt your mom’s cat is either. Nor do these documentaries make much sense outside of our culture any more than the music does. Does that mean the creators of these documentaries should just put their work up on torrents and youtube and forget trying to get some income from them? Of course not.

      May I suggest that a better question is “what is a reasonable copyright length?” As others have pointed out music from the early 20th Century remains (or may remain, who can tell?) in copyright. Our current copyright system is doing no favors to the culture or the long gone artists.

    • napstimpy says:

      Compensation for the musicians who write and perform the songs (to whatever level you feel is fair) is not the entire issue here. In addition to publishing rights, there is the copyright to the actual recording, which is often not held by the musician, but by the record label.

      This is why Styx had to re-record 1972′s “Lady” for their 1995 Greatest Hits CD– their old record label owned the 1972 recording. Sometimes even the band and songwriter runs into a wall.

      It can get worse. Google Fogerty v. Fantasy for an even more absurd copyright battle.

      I apologize for playing the Styx card.

  25. Anonymous says:

    I’m with Thad. If you can’t secure the rights ahead of time then don’t put it in your film. Don’t they teach that in Graduate school?

    @rwmj, re: Zepplin, you said “Those two men have been amply rewarded for their work (to the tune of millions of $$$ each). Can we now not take that for the greater good of everyone?”

    If you ask them if it’s okay with them and they agree then yes. If you don’t ask them or if they don’t agree then no.

  26. Tdawwg says:

    This isn’t exactly the subject, but Killer of Sheep is a surpassingly haunting and beautiful film. And it’s on Criterion now along with other Burnett films, so you can rent it (or someone’s torrented it by now, ha….) TCM even did a Burnett night a year ago or so. I know the issue is copyfight etc., but I got a lingering impression from the above that folks think Burnett’s film is somehow out of the public eye, and it’s not: really, go see the film, it’s amazing!

    A further wrinkle: Mos Def’s last album, The Ecstatic (forgettable), has an image from the best part of Killer of Sheep on its cover, and credits Burnett inside: I wonder how much Mos Def paid for it, or was it a loan from one artist to another?

    • Anonymous says:

      Never thought of that irony, but yes, Mos Def’s company did come to us (Milestone) in advance to license an image from Killer of Sheep for his next CD cover. We sent over 100 stills for them to choose from. They offered money and with Charles permission, we gladly did licensed it.

  27. ryuthrowsstuff says:

    @Marshall

    That seems a little strange when I was at college (2002-2006) every Film professor I had owned a copy of Killer of Sheep. And usually had a pipeline for, or were willing to make more. They were clearly bootlegs. Some were really low grade VHS, but most were fairly good quality transfers on DVD with high quality packaging. The flick was so east to come by there that it was never even discussed as an example of music rights issues. Usually we just went with Tod Haynes’ Super Star on that front. Only ever met one guy with a copy of that one, and still sort of kick myself for not asking for a dupe.

    • Marshall says:

      ryuthrowsstuff -

      Getting an educationally licensed copy of Killer of Sheep was never an issue (even though it was ridiculously expensive), but the ability to project it with proper sound for a full-size theatre wasn’t an option both in practical terms or in legal terms at the time.

      The theatre we were trying to show Killer of Sheep at is a City of LA owned facility, with a union staff that can’t show films that aren’t properly licensed. There being no legit 35mm or 16mm (and to my knowledge, at the time DVD) versions of the film available, even if I had it in hand we would not have been allowed to present it to the public. Given the size of the theatre, a 1500 seat former movie palace (The Warner Grand, to be specific), equipped with a balcony, and having an extremely long throw from the booth to the screen, a film copy was really essential to presenting the film. There simply wasn’t a legal one available at the time, and there certainly wasn’t an available DVD copy, either with or without a theatrical license.

      The real shame of not being able to properly license Killer of Sheep is that we were able to get Wattstax in a brand new 35mm print, showing it for the first time in the 15th District since it was released. The two films would have been a really amazing pairing, focused on Watts, a distinctly underserved and ignored area of both the District and the city.

  28. Tdawwg says:

    Oops, I said “Criterion,” while the films are out on Milestone…. which our kind blogger has had the care to link to. Overhasty Tdawwg is overhasty! Anyhoo, watch the damn film.

  29. Anonymous says:

    The “Bad Lieutenant”/Schooly D saga is all the more rich considering Jimmy Page is generally acknowledged as a “borrower” of other’s riffs. Actually, he’s often just called a thief.

    Some songs Zep stole from other artists can be found here: http://www.warr.org/zep.html

    Here’s the tale of Jimmy Page stealing “Dazed & Confused” from Jake Holmes: http://www.furious.com/perfect/jimmypage.html

    I recall there was even an Onion article about it, but it is no longer online.

  30. nickelrocket says:

    This is similar to the story of Nina Paley and her “Sita Sings the Blues’ fiasco. She was “allowed” to clear the compositions for $50,000. Down from $220,000. On songs that are 80 years old. From her FAQ:

    Q: Why would corporations hang onto all these old copyrights if they are going to make it so hard to use them?

    A: Well, there’s a good answer to that. The corporations that hold these copyrights are media companies that also control most of the new media that comes out. Estimates vary, but it’s said that 98 percent of all culture is unavailable right now because of copyrights. So the reason they hold the copyrights isn’t because they want to get paid, it’s because they don’t want all the old stuff competing with the media stream that they control now.
    http://www.sitasingstheblues.com/faq.html

    This film is being distributed under Creative Commons Attribute Share-Alike license. Please support the artist.

  31. Lobster says:

    Silence of the Lambs was better. :D

  32. jonathan_v says:

    So the rationale in many of the comments is that royalty rights are absurd when they’re motivated by corporations trying to elicit new revenue streams?

    What about when using a song on a film/subject matter offends the recording artist , compromises their vision / integrity / etc , And that is the reason for exorbitant rates ?

    Working in advertising , I know of many artists who have flat-out-refused or demanded exorbitant rates for their music to be used to peddle goods they disagree with. This is no different.

  33. webmonkees says:

    I want that as a DVD/Bluray feature: “Director’s original intended music” and let you, the home viewer, violate the music rights by syncing up your own copy of the song.

    (Especially WKRP, which is a mess of generic music attempting to mask the original songs that apparently only were cleared for the broadcast run.

    But really, MTM.. The doorbell? You couldn’t afford to pay for the rights to the doorbell??)

  34. das memsen says:

    Everytime a copyright-centered article pops up, we have the same arguments, back and forth. “Stuff should be free” vs “Stuff should be paid for.” I’m not sure where we’re getting with this- personally, the idea that people should be legally prosecuted for or prevented from sharing / borrowing other people’s art is ridiculous and morally indefensible. Most arguments appeal not to any philosophical assertion but some kind of circumstantial issue like “if people don’t get paid, the industry will crumble…” None of this has anything to do with the fundamental concept of “stealing” and idea ownership.

    My full thoughts on the subject, if anyone cares, in the form of a graphic novelette:
    http://foolfactory.com/haus/comics/2gtech.html

    • Ian70 says:

      “Stuff should be free” vs “Stuff should be paid for.”

      That’s pretty much the argument for both ‘camps’ right there in a nutshell.

  35. trommelkopf says:

    @Tynam: “The answer, of course, is not to use big-label music at all.”

    @David Rice: “A filmmaker’s skill set must include the capacity to weigh artistic considerations against financial constraints, and to creatively solve one problem or the other.”

    This is why there are music supervisors in the film industry. There are plenty of independent music supers working with indie filmmakers. Perhaps some filmmakers don’t understand the role that music supervisors play. Dominique Preyer, a music super based in Austin, has been working to correct that and explains the job in a nice interview here: http://www.musicsupervisorguide.com/Interviews.aspx?id=1

    The job requires a specialized skill set that includes helping the director budget for music from the very start of the project. There’s no point putting a song by a major artist into the temp dub of a film if you know you’re not going to be able to afford to license it for release, or beyond the festival circuit. Get the music super to find a different track, preferably by a local or indie artist. You never know, it might even work better. And it encourages talent outside the major label system.

    Plus, if you need to rely on a popular song to make your film interesting then you may have a problem with your film.

  36. turnstyle says:

    I still don’t get it, what is the “take away”? That filmmakers should be able to use whatever music they want to use without asking?

    Seems to me:

    1) Songmakers should be able keep their rights, or if they choose, transfer them to other rightsholders

    2) Filmmakers should have to get the rights from a rightsholder to use a song (unless exempt via Fair Use)

    If not, where do you object?

  37. sluggo says:

    I worked on some music for the movie Kwik Stop (http://www.imdb.com/title/tt0212292/), a flick that ran the film fest circuit, then was stalled for some time. My pal tried to get the rights to the original music, and was told many times that the cost of licensing was 20,000 bucks and up, per song.

    This is for obscure tunes that no one has heard for years, by artists who are long dead.

    On one song, the rights holder didn’t even know if they were the rights holder, but were more than willing to license the song. Sadly not surprising to me.

    My pal arranged for original music to be written for and recorded for the movie, including several songs by local legend, Bobby Vee. The artists involved did not demand 20,000 dollars–more like a case of beer, and a couple hundred dollars.

    Strangely, even though the industry would have you believe that they are all homeless and unable to continue their art sans licensing fees– they’re all still making great music.

    Me too.

  38. arkizzle / Moderator says:

    Anyone making THIS article about “Stuff should be free” vs “Stuff should be paid for” or “the rationale in many of the comments is that royalty rights are absurd when they’re motivated by corporations trying to elicit new revenue streams” hasn’t read the article or the comments here properly.

    Things are more complicated than that, and even people who have tried to follow the rules (appropriate to the use they intend for their work) can run afoul of copyright laws and dollar gouging rights-holders (not the original artist).

    In my opinion, there should only be the right to allow or deny use in a particular project, and after that, standard royalty rates for usage.

    • das memsen says:

      Things ARE more complicated, but that’s only because we haven’t bothered to define the principles- we simply keep reacting to every new permutation that comes about. It’s the principles we should be concentrating on- once you get that down, any new invention and change that comes up is easily dealt with. Otherwise, everyone just has their own idea of how to deal with this, none of them much better than any other. A standard royalty rate of usage, not taking into account any factors (i.e. cost and time to the artist, or who is asking for the work- rich company or indie filmmaker… etc?) Sounds pretty suspect…

      • Itsumishi says:

        A standard royalty rate of usage, not taking into account any factors (i.e. cost and time to the artist, or who is asking for the work- rich company or indie filmmaker… etc?) Sounds pretty suspect…

        I don’t know why the cost and time to the original artist should have any bearing on what a film pays to use it (sunken time and costs, the artist isn’t going to have to spend more or work harder to put it in the film, that’s what the film maker will do).

        The whole point of royalties is that it would work with both indy and major film makers. Instead of a set fee of to use a song in the film a percentage of total sales would be used instead.

        So indy film maker sells 2,000 tickets to his film and pays $0.05 cents per ticket sale to the rights holder in question. The rights holder gets $100.

        Major blockbuster film sells 5million tickets. Rights holder gets $250,000. Sounds pretty damn fair to me.

  39. mypalmike says:

    Making a low-budget film? Don’t use high-budget music.

  40. EricT says:

    A few years ago I envisioned the happy ending of a film wherein the players dance out of the house and into the front yard to the song Dancing In The Moonlight. Fade to black and roll credits while the song finishes up.
    Thus began my long journey into darkness trying to figure out who could licenses the song for me.
    I eventually got in touch with BMI or some such and they wanted for festival release around 800 bucks to license the song for a year. It seemed a bit pricy for yet another hobbiest film added to the noise so I asked a Myspace friend who had indicated she had music if anyone wanted. We came to a mutual agreement, I got rights to the song for my film and I also secured rights to some other BG music from another band for credit and copy.
    BMI got nothing and I got some great music and the musicians get credit in the show that will be seen by most of my family. A win win situation.
    I am all for artists getting what they deserver from their efforts. But stupid situation like Happy Birthday to You being granted a copyright to someone who simply knew how to fill out the paperwork is wrong and should be stopped.

  41. anwaya says:

    Personally, I expect the sad, crumbling edifice that has been built on the Constitution to collapse before too long. I’d like to see silliness like the current version of copyright to collapse with it, but I suspect that what we’ll be left with will be the hull of accumulated silliness instead.

    Or did it already happen?

  42. das memsen says:

    Specific to the film industry, there are a million different scenarios and factors to make any one single summation of how it works. The spectrum goes from ridiculous legal entanglements that help no one to stories of good people getting screwed to greedy companies to greedy rock stars to lazy filmmakers to poor filmmakers. Trying to invent a system that somehow envelops all of this in a fair way is idiotic- we just end up with a useless, inefficient behemoth, where no one is happy. The only logical solution is to give up this waste-of-time dream that your work is yours and that you deserve money for it. But in the meantime, to any filmmaker wannabes out there, the answer is simple- don’t use licensed music. It’s a stupid waste of time and money. If your “creative vision” includes the latest Arcade Fire song, and nothing else, you don’t have much of a creative vision. Be resourceful- make up your own music, get a friend, find a guy on the subway, I mean, these days, anyone, anywhere in the world can access tons of free music at any time. Or don’t use music at all, since it usually serves only to make a shitty tv show / movie more palatable. I fully agree with the destruction of copyright laws, but until that happens, don’t sit on your ass and whine about it, don’t be stupid and work yourself into a legal dead end, just be creative and resourceful.

  43. Anonymous says:

    Artists, of any kind, must produce all of their own content. That’s the whole point of artistic creation.

    I guess that rules out Duchamp, Warhol, Koons, and those wacky GI Joe PSAs.

  44. Axe7540 says:

    By this logic every no name independent band should be allowed to put a perfect copy of Pirates of the Carribean or some other blockbuster in with their disc and sell it without paying the movie maker. I may be committing a logical fallacy but it seems that way to me.

  45. Church says:

    A copyright term of no more than twenty-eight years was good enough for George Washington; it’s good enough for you.

  46. gruben says:

    For those in the LA area, there is a theatrical screening of Killer of Sheep coming up at the New Beverly Cinema.

  47. Bemopolis says:

    @#30

    “Stuff should be free” vs “Stuff should be paid for.”
    That’s pretty much the argument for both ‘camps’ right there in a nutshell.

    You missed the third, sanest option: “Stuff should enter the public domain after a *limited* time.” Like it says in that Constitution thingy.

  48. BebopAlulah says:

    This is just a case of one independent artist screwing another independent artist.

    Pay the guy for his music or don’t use it. Period.

  49. Anonymous says:

    Ironically Zepellin (and it’s record company) have no problem stealing from other artists to get their work done. http://www.dogmaticblog.com/2007/06/28/howard-stern-exposes-led-zeppelin-as-a-farce/

  50. mzed says:

    As Bemopolis says, this issue is not a dichotomy.

    The original purpose of copyright is not, specifically, about making money. In the USA, Congress was given the power “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.” This is Article I, Section 8, Clause 8 of the US Constitution. The idea is to protect scientists and artists who share their works so that everyone can benefit, and includes patents and copyrights.

    In the cases cited here, it seems clear that the progress of the Arts has not been promoted by the current legal framework. Rather than promote arts and sciences, current copyright and patent law seems designed to protect corporations and their revenue. Another informative film is RIP: A Remix Manifesto. Creators should get paid and have some limited control of their works, but not to the degree that it stifles the creative climate in general.

  51. MadRat says:

    Didn’t the movie Heavy Metal also have some serious problems with music rights? I’ve always heard that was the reason it took so long to get released to home video.

  52. Anonymous says:

    Well I think that there will be general agreement by most copyright defenders here that copyright terms are MUCH longer than there is any reasonable need for. And that record companies are terrible rent-sitters and friends to anybody but themselves. But where’s the fun in that when we can debate in absoloutist terms about whether copyright is good or bad?

  53. das memsen says:

    I have no problem with the original idea of copyright insofar as it’s a pretty clever invention for the best of both worlds in a capitalist system. It allows ideas to be exploited for a short time without having to worry about someone else with more resources than you grabbing it for themselves, and then it gives it to everyone to use however they want, after a short waiting period.

    This is, however, purely a clever, functional invention- not to be confused with a moral principle never to be revised. It works right now only because of our current technology. Let’s fast-forward a bit to a time when you think up an idea and it is instantly available to be “hacked” or “accessed” by anyone around the world, and this system doesn’t really work any more. I’m stepping into sci-fi territory, I know, but that’s where we’re headed. Point being, we need to acknowledge and distinguish between the actual working principles (the concept of “owning” and idea, which is, to me, bunk) and the current practical but temporary realities we’re surrounded by (capitalism, the internet.) As long as we keep this clearly stated, I’m all for going back to the original copyright method for now.

  54. Anonymous says:

    Burnett made Killer of Sheep in the 1970′s as his film school thesis. This was long before cd’s, mp3′s, and sampling. I doubt he ever imagined that his film would go on to be such an important work, and be in such demand on the festival circuit and DVD. There are many people out there making music and film who blatantly steal other artist’s work to make up for their lack of creativity. Burnett was definitely not one of those with Killer of Sheep, and it’s a shame we had to wait so long to be able to see such a landmark film.

  55. David D. says:

    And another “hear hear” for Mzed!

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