OT:Copyright Caveats-

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filmy wrote on 12/26/2003, 6:47 PM
[Sorry this is a longish post...just had a mind flow going on]

Hey - wow. I actually like that idea...I mean the car point anyway. It is extremly well taken, by me anyway. It sort of reminds me of of a Texas story. Years ago I was working with a band that played at South by South Usless...er, South by South West (SXSW) in Austin, TX. On the way back the van tossed a rod in the middle of nowhere..."nowhere" being a little place called Ozona, TX. Even though AAA had 3 hotels listed there (there are only 3 hotels there) they had actualy never ever heard of Ozona and did have any AAA garages listed, or towingservices for that matter. Nearest one listed was some 3 hours away. To really cut to the chase - the one garage in this town took 3 days to fix the van and charged me almost $4,000.00 to do it. Less than one month later when I was on the road with another band the engine went screwy, this time in Grants Pass, Ore. When the garage there looked at it they were all shocked and called me in to look at the engine - I knew somehting wa sup when the 6 mechanics who worked there all were standing around the van shaking their heads - bolts were missing and in the wrong places and one of the engine cylindars was cracked because they had tightened the top too much. And it went on and on...and after ONE MONTH of being stranded in Grants Pass I finally got out of there. The reason I was stranded for so long was because the engine was still under warrenty and the guy in Texas had to send me a replacement. Problem is he kept dicking me, and the garage in Grants Pass, around for 3 and a half weeks. When I got the receipt from Sun Engine for the new engine I was stunned - the cost of the new engine was only about $600 and it included rods and such. The place in Ozona had charged me $2,500.00 for the engine plus more money for the rods and other items already included. Why this is relavent here is because when I tried to sue them I kept gettinf that "great" texas hospitality and it got all the way up to the Texas AG's office where I was actually told that in America, one of the things that made it a great country, was that good business people could mark up items and charge for their craftmanship. Thusly just because they had taken a $600 part and charged me 3 times the cost plus charged me agian for parts already included in the cost AND ****ed up the work, they had done no wrong. (The other side of this story is to avoid texas if you do not live there because you too will be screwed over and all the inbred locals will stick together wtih comments like "What do you need to sue for, you have a van...you must be rich" and local judges will tell you "well he's a drinking buddy of mine why don't I just go talk to him" before he refuses to hear the case because "You're not from around here and I know what you outsiders are like" and the states legal judicial review board will tell you there is nothing wrong with the only judge in town being drinking buddies with the guy you are trying to sue and the states AG will tell you nothing was done wrong overall. Bitter after all these years? Who me? nah) So think about that - as a musician you can write something and you should have the right to mark it up and set a price, at least I feel the author should be able to do that. But what happens is, like that garage in Texas, record labels, managers, "Harry Fox" type places and others will take something and re-sell it at whatever markup they feel like. In the end the person who actually created that item gets a check for 50 cents while everyone else makes money for doing little or no work.

Before you disagree - think about this. You pay to see a concert - say Britney Spears. You go to ticketmaster and plop down your $100.00. Ticketmaster takes a fairly huge chunk as some lame "service charge". The venue oft times will also have a fee. Now figure in all the other "little" people who take money from that, before it ever gets to little miss Britney. Now when the Tour Manager closes out the show that money is a good chunk. Booking agents will take off maybe 10% off the top. Business/Personal Manager another 5 - 10%. than what is left goes to pay the crew who works for her. What is left over she may get, which is still good - but hardly the same as you paid for that ticket. I personally think the amount of money charged for acts like Kiss, Aerosmith, Britney, Backstreet Boys and so on is disgusting. But in today's day and age I can understand why there is a need to charge that much. By the time all is said and done if they only charged 7 bucks the tour would be bankrupt after the first show, if not before the first show.

Video and film is the same. I was thinking about these thread because I got an email on Christmas day from a composer I had brought in on some films many years ago. You know what he said? He said "Thank you" because he had just gotten a check from BMI because one of the films had shown over in England on some cable type channel. He wasn't thanking me for the check directly but he was thanking me for hiring him to work on the film that allowed him to still get money all these years later. Today I sent him off a reply saying "I am glad someone is still making money from the film." I am not against publishing because, frankly, that is where the musicans stand to make money over time. I think the whole copyright issue, in reguards to music, would better serve musicians in the long run if it allowed for "free" use as long as credit was always given and publishing was always in place. In other words you, me, the dance studio, the jukebox owner, the cover band...whoever... wanted to use a piece of music they could use it for "free" as long a certian elements were met. If it was used in a film, for profit or not, it would have to include the publishing information. Any theatre, TV station, public event screening...basicly any public screening anywhere, would include a set amount that would be paid to the publisher for the artist. In a sense this is already in effect however what I am suggesting is to take out all these "Clearance" houses who charge money and all of the "mechanical" costs and just go to the artist, or their rep, for a one time cost.

Confused? make it like this for simplistic reasons here - I want to use a Jewel song. I go to Jewel, or her rep, and say "I want to use this song for a film." Jewel, or her rep, has a common list of pre-questions - not 'how many copies will be sold' type but artist controled questions "Is this a porno?" "Will the film contain any nudity?" "Will my song be used in any scene that shows hate crimes bing commited?" "Will my song be used as the main title or end title track?" "Will there be a soundtrack album made?" "Will there be a music video made?" and so on. Based on those answers Jewel will either say "yes" or "no" and a common price will be quoted - by common I mean a set price based on what each questions answer is. Maybe if it is to be used as the title track and a music video is to be made the price, again being simple here, is $100 and if it will be used as background music and only 10 seconds of the song than maybe $10 is the set price. This price includes all rights needed, excluding publishing. But here is the important thing - publishing is handled by the publisher. Same as the composer who emailed me - we did not send him that check. The station that aired the film did not send him that check. BMI sent him that check. So the same thing would happen - you make your film and use the Jewel song. Whenever the film airs the place, or person, showing the film pays the publishing - basicly the same way it is done now by radio stations, television stations and bars all over.

Here is another way to look at it. Say the band is an up and coming act. The band first says "Yeah we will do it but we want 'X' amount of dollars" You go to the director/producer/powers that be and see what you can do. You come back and say "Ok, we can not afford to pay that but we will make a music video for you at our cost. " They may go "Wow...our label is not gving us a video...cool. We get our song in a movie and we get a music video" Currently you may never get this far if you are dealing with all the BS you "have" to deal with. But I know many many many artists who have been "promised" things by their managers and labels but never gotten them.(ie - videos, other marketing support, tour support) I also know many many many artists who would love to have their music in a film. I also know artists who had no idea that Harry Fox was "representing" them, thusly who knows how many people may have been told that artists music was "not available" for film use. So..like I said..give the music back to the poeple who actually make it.

One other interesting thing...as I was flipping through the channels I came across this VH1 special on the "most shocking" moments of all time in music and I happened to tune it in as they were talking about John Fogerty. I had forgotten about this event and I wouldn't think of it as "shocking" but certianly it shows you how messed up all this of which we speak is. John Fogerty wrote the CCR song "The Old Man Down The Road." When his solo album came out in 1985 there was a song called"Run Through The Jungle" on it. Saul Zaentz decided that good ole John had ripped off himself so Zaentz actually got a lawsuit into the courts on the basis that John Fogerty had plagiarised himself (!!!) It took 10 years for the case to get through all the courts and, according to the VH1 thing, John had to bring a guitar into court and play both songs to prove they were not the same. He won the case in 1995. Ten friggin years to defend yourself against yourself...the laws are insane to allow that. Keeping in mind it wasn't the author who broght this suit against himself, it was the "publisher" of the earlier work.

Maybe it is just me who really thinks this sort of stuff is messed up. yes the "law is the law" but when it crosses over to the stupid it is time for heavy duty reform all around.

(And just an interesting little news thing from the year 2000 -
===
Former Creedence Clearwater Revival frontman John Fogerty filed a $1.3 million lawsuit in Los Angeles Superior Court on Thursday (Dec. 30) against his former law firm, Gibson, Hoffman & Pancione, and lawyer, Kenneth Sidle, over allegedly providing the singer with incompetent legal advice and representation in connection with various contractual disputes and lawsuits. Fogerty, who is suing for negligence and breach of contract, claims he should have received $2,600,000 as payment for royalties due as a result of a 1985 copyright infringement lawsuit against the singer brought by Fantasy, Inc., a successor-in-interest to certain music publishing, recording, and songwriting by Fogerty and CCR from 1968-1972. An amended joint pretrial statement was agreed to in the case by both parties, a part of which included a stipulation known as the Fogerty Audit Claims. In layman's terms, Fogerty, through the firm of Gibson, Hoffman, & Pancione, had a deadline of Dec. 31, 1989 to bring forth an audit of Fantasy and their payments to him, or forever hold his peace. Fogerty alleges those claims were never made, nor was he aware of a deadline involving their institution. As a result, Fogerty only received $1,225,000 in royalties, leaving a discrepancy of just over $1.3 million. Fogerty also claims he is due $50,000 in interest from said royalties. The suit reads, in part, "Sidle and GHP, and each of them, failed to exercise reasonable care, skill, and diligence in representing Fogerty and negligently failed to advise Fogerty with respect to the existence, meaning, and significance of the contents of the amended joint pretrial statement, negligently failed to provide advice to Fogerty with respect to the exercise of the Fogerty Audit Claims, negligently failed to protect the Fogerty Audit Claims and were negligent in the prosecution of the Fogerty Audit Claims."
=========

So now tell us again...the really bad people are those who shoot a dance recital or wedding for 10 [or even 50] bucks plus free food and those in possesion of the latest Metallica song in MP3 format?)
Spot|DSE wrote on 12/26/2003, 7:44 PM
This is exactly the sort of thread I'd hoped to avoid, simply because it's useless. Write your Congressman.
Bigger point goes to your last question though. How do you make laws different for one group of people vs a different group of people. You can't. The laws definitely need revamping but frankly, artists have ALWAYS got to be protected. As an aside, for the legal crap that has to be gone through as the laws currently are, I'd never consider allowing my publisher to let a song be used for less than 250.00. It's simply not worth it for the hassle and shared payments. And even at 250.00, it's a steal. Go see "Last Samurai." I've got less than 15 seconds of audio in that movie, and my royalty was 30 times what you are suggesting. Why? Because of the number of expected views, the size of the film, the number of dupes, and the number of expected DVD sales put the film into a specific licensing category. So, they bought out the rights to those textures. (Tom Cruise' dream sequences) Even at that price, I feel ripped, but hell, I'm pretty proud to add "The Last Samurai" to my credits list. I really would like to be paid on a sliding scale, based on sales and audience demand. But, that's an accounting nightmare for the production company. BTW, that stuff was recorded in Vegas @24/96. Further BTW, I've done so damn many projects that COST me money to get to the level that I can get breakers in a film like TLS, I'm feeling like I'm somewhat deserving of those sorts of payments.
Mechanicals are compulsory, and there is no way around those, even with a revision of the laws, they'll stay. They are the oldest copyright law in the world, going back to England in the late 1600's, and have been part and parcel of America since the late 1800's. It's a reproductive device, just like an author gets paid for each copy of a book printed in large pub houses, regardless of sales. Your great grandchildren's great grandchildren will be paying compulsories for productions, that's a given.
Anyway as always Filmy, your views are always pretty damn on the mark. Even if we disagree sometimes. :-)
filmy wrote on 12/26/2003, 9:35 PM
>>>I've got less than 15 seconds of audio in that movie, and my royalty was 30 times what you are suggesting.<<<

Not sure if that was about my "$100" comment but just to be clear - I was being overly simple. It could be $1,000.00 or less, or more. My main point was that in the long run it would be the publishing checks that you get 10 years from now that will bring in money. I know bands who have opted to take $5,000 up front to let small labels put out their album rather than take a % of sales....this is always apart from publishing royalties. I am also not against the mark up, price wise, with anything. What I am against is the prevention of any artist not being able to create because of some "fat cat lawyer", unions and/or other suit types create a longer process and a higher mark up than need be. For example were unions good in the beginning? yes. Are they good now? Depends...seems every other year the DGA wants to go out. Aren't we all in this because we love to create? I hate it most when teachers go out on strike - what do we teach our kids about the value of life and education when the people they look up to are always asking for more money? Like Jeane Garofalo said in one of her stand up routines - "You know how our parents worked so hard to make our lives easier? Well they succeded." Think about that - it is extremely funny, and sad. I look at Lionel Ritchie and how much he has put into the music industry and I watch The Simple Life and wonder what the hell he must think about his daughter...I mean does it really make her look bad or him?

I think at it's core any kind of discussion about why the law is the "law" should include the money factor. How and why it got to the point it is at now is important as well. All works should indeed be protected and if someone takes your, their or my "work" and copies it frame by frame, word by word, note by note or whatever they should be fined whatever the "law" allows for. But that has been proven time and time again to be a really broad statement because there are a lot of "What ifs" that come into play, and will continue to come into play. My long post was sort of both in favor of, and against, zcheem's post. His car analogy hit me as a very valid point. Yeah any of us can go out and buy a "Ford" and than modify it anyway we see fit. We can enter it into car contests, take pictures for car mags, video tape that car and sell videos of it...yet "Ford" doesn't usually come after anyone for doing so. Using or reproducing the "Ford" logo in a film is another story however. But the concept of that is, I think, a valid point. Isn't that cars design copyrighted? Fender Strats are...all these knock offs out there have a slighty different neck and body shape. But all this seems to end at first sale unlike music, films and television. I see modified Marshall amps for sale all the time. I see modified Fender Strats and Telecasters for sale all the time. I see modified cars for sale. In all of these cases I doubt that most of the people who have done the mods have gone to the manufacturer and paid, or asked, for permission. But I can't buy a film (at a consumer level), modify it and re-sell it...well, unless we are talking public domain films. And if I buy a CD by our friend Spot, sample it and than re-sell it in a modified form, well...you get the idea. So while I disagree with the concept of tossing out the copyright law all together I really love the car thought because it does sort of lead to this discussion. (An no, I do not think that anyone should be allowed to just go out and buy a film or a CD and just re-release it as their own. )

Anyhow - my root idea is to allow people who create the work to have as much of 100% say in who uses that work, and for what, as possible. A manager or rep can surely handle the ultimate business side but I firmly feel 'final say' should be with the person(s) who created it. And going back to the topic as posted - the article is still great. It answers a lot of questions and, like much of what Spot does/says, provides a little light into what otherwise would be dark. The discussions always come up because of the "what ifs" and I really don't think that will ever change no matter what happens.
Spot|DSE wrote on 12/26/2003, 9:49 PM
I knew you meant to be simple in the description. I mentioned the buyout cost range, because I wanted to illustrate how broad this really is. I mean, can anyone really say that 15 seconds of audio in a production that will likely sweep the Academy Awards was too costly at 3K? Interestingly enough, had I done it for a small production, it probably would have been done for 500.00 plus a flat bump when the project sold X copies. I'd keep copyright, and the right to promote that it's in such and such a project, plus I'd likely use elements of the work again in something else. I did this with the "White Birds of Winter" project for the BBC, and I reused those elements at least a dozen times since I got to keep all rights, I just couldn't reuse the mix that I licensed to the BBC. So, I did pretty well on that. BBC does buyouts now, pretty well always, BTW, because they don't want certain elements to be used. Plus, they are now releasing their own CD's, and my music wouldn't have been usable on a CD since I owned copyrights. But I probably would have licensed it to them.
Finally, one small comment on the car; because Ford owns the design, or Fender (BTW, CBS has successfully defended MANY lawsuits, you know this Filmy!) doesn't mean someone can't create a derivative work. The bigger issue is, can you duplicate the Ford part for part in your garage? Or the Fender? And use their name? Nope. If you could and did, mechanics would be having this discussion instead of creatives. However, with 3D lathing becoming a VERY real future portent, I've even seen working models, then this WILL become a huge issue.
Imagine....Noritake giving you the file info for your computer to be able to manufacture their plates in your home using a lathing modeler. Or imagine being able to create your own tools, models, cups, glasses, shoes, any solid object, just by downloading the file from the manufacturer site.
Hmmmm....."Honey, did you see where I put the file that makes the James Burton Telecaster?"
Damn, this issue is going to be huge in the future. Makes me wish I WAS a lawyer!
Zulqar-Cheema wrote on 12/27/2003, 2:04 AM
"with 3D lathing becoming a VERY real future portent, "

I have sent these 3d printers about & coming down in price, which as you say will open a new can of worms.

In the UK Ford has to allow other car part manufacturers to produce spares of their vehicles.

I wonder how it is dealt with in Star Trek and their replicators?
tbethel wrote on 12/27/2003, 5:28 AM
Your cost for a mechanical license is somewhat out of date in the article we are directed to. I would suggest that everyone shoud spend some time on the Harry Fox Agency website and especially at the http://www.harryfox.com/ratecurrent.html?cat=lic_home&high=lql

FWIW

-TOM-
Spot|DSE wrote on 12/27/2003, 7:46 AM
No my figures aren't wrong, the rate is currently standing at 1.45 per minute til next year. I guess it depends on how you break the math down, I should have included my 10 song/3 mins avg, broken down per song rather than just leaving it at a flat rate. As far as I know, no one really pays attention to the per song rate, because the producer sheets and mechanical forms all do it by the minute for reporting, and by the song for payment, since it's a way that the labels can have fuzzy payments and get away with it. Then there are admin fees to consider, which the article mentions. But.... 1.45 x 3 mins =4.35 cents. I rounded it down because it was less than 4.5 cents, whereas I would have rounded it up were it higher than 4.5 cents. Then take off approx 15% for admin fees. Hope all this makes cents. I'll modify the article to reflect that, but it was fine with the NARAS folks that previewed it.
vitalforces wrote on 12/27/2003, 10:42 AM
I think (and I'm a lawyer by day...) that the major labels and artists should contribute occasional creations to a web site for royalty-free music. Totally royalty- and license-free. This good-faith gesture on their parts would quench some of the heat around the topic and plant the seeds for an atmosphere of, for lack of a better word, trust.

Of course remember the down side (spoken just like a lawyer, eh?) An Aryan hate group could then attach the music to a video of Jews being beaten, etc. So even the freebies would have to start out with a caveat about how the work is used.
Matt_Iserman wrote on 12/27/2003, 11:36 AM
I hope this doesn't pull this too far off topic...

To continue on Vitalforces thought, I think this entire copyright mess creates a wonderful opportunity for people. In many communities there are talented musicians, many of whom perform for community orchestras and bands for free. A local video producer (say, wedding videographer) could arrange reasonable agreements with these musicians to create music tracks. The two parties could create what ever contractural arrangement they wish, thus, avoiding the messy copyright maze. The music created could be bought out straight up or a royalty arrangement could be made.

For folks making low/no-budget fictional works, if you find a talented musician who also can write music, you can get your own custom soundtrack produced.

Also, since many of the local musicians play for fun and not money, they may even be willing to play for only a copy of the finished work. A producer I worked with recently on a low-budget sitcom had this type of arrangement with a regional director of the American Composers Forum.

Have other non-musicians gone this route? Any stories to share?
Spot|DSE wrote on 12/27/2003, 11:40 AM
http://tonetile.com/weedmedia/index2.html is somewhat working along this model. Very interesting, and a great resource. Rudy Sarzo turned me on to these guys, and I've submitted some music to them with good result.
tekhead wrote on 12/27/2003, 3:25 PM
The founding fathers had it right the first time. Copyrights should have been kept at 7 years (IIRC). I am truly split on this issue. On the one hand I personally know how long it takes me to capture, edit, title and create a "nice" piece of work just for my own personal use of the home movies I own that I hope my great grandchildren may enjoy someday BUT....

On the other hand, infinite copyright w/ infinite compensation is not what the original founders I think had in mind. For the most part, the general public doesn't support most if not all of the copyright law. If 60 million people are downloading songs and/or movies "illegally" then clearly the Congress is not acting in the public's interest but in the interest of corporate $$$$ to pass something as wicked as the DCMA and extending copyrights to the "I'll never be alive to enjoy it" time frame. People are too lazy to call their congress person or even register to vote but the public to some extent has already spoken.

On a side note:

The War on Drugs has cost billions and the end result has been thousands of tons of cocaine, heroin, weed, <insert drug here>, flowing into this country .

The War on Terror has cost billions and the end result has been continued terrorism around the world not to mention millions of people entering the US illegally each year.

The War on <insert bad thing> has cost <insert millions/billions> and the end result is people still do it.

You see the trend.....

The War on Copyright will cost billions and.............well you know the rest.
farss wrote on 12/27/2003, 4:07 PM
I was just thinking of the comparison between what's happening arounds us with recorded sounds and what happened long ago with the invention of the printing press. Armys of monks were thrown out of work, the population became literate and knowledge and ideas flourished. In the process some became rich and others poor. The church lost control of knowledge and its influence has been waning ever since.

But you know what, I'd still love to own a book that was written by one of those monks, I still remember saving up for weeks to buy a vinyl LP. Back then we were allowed to believe we actually owned the thing, we carried it to school with pride, the advent of CDs kind of destroyed that and well, an mp3 on a Rio, where's the pride of ownership in that?
Sure the music sounds much better, sure i can buy it much cheaper and easier than before, don't even need to leave this room. Still I feel I've lost something. I'm not being a Luddite, i don't want to turn the clock back but I think this explains the decline in record sales more than anything.
Sadly me thinks the same thing is about to happen to moving images as well.
tekhead wrote on 12/27/2003, 4:39 PM
Don't worry, at some point in the near future entertainment will simply be downloaded directly into your brain. Who knows perhaps you'll have a mini-hard drive in your skull that can store your favorite tunes and movies. Perhaps you'll be able to store your memories on the HD and share them with others. Perhaps you might be able to charge them for a view. You might even be able to transfer those rights to megaCorp so that you actually don't own your own memories!

Now THAT's entertainment!

Tek
riredale wrote on 12/28/2003, 6:53 PM
"...Makes me wish I WAS a lawyer!"

Amen to that, Spot. My sister is a tax partner in L.A. and pulls down $1,000,000+ every year. She couldn't change the oil in her BMW or wire a light switch if her life depended on it. Sigh.

Parents, gently nudge your kids towards law or medicine. The person who said that "money couldn't buy you happiness" was obviously an engineer.
riredale wrote on 12/28/2003, 6:54 PM
"...Makes me wish I WAS a lawyer!"

Amen to that, Spot. My sister is a tax partner in L.A. and pulls down $1,000,000+ every year. She couldn't change the oil in her BMW or wire a light switch if her life depended on it. Sigh...

Parents, gently nudge your kids towards law or medicine. The person who said that "money couldn't buy you happiness" was obviously an engineer.