Once Again, Music Licensing Harms The DVD Release Of A Classic TV Show: The State Goes Generic
from the sad-days dept
Fans of The State have a cultish connection to the fantastic sketch comedy series that was on MTV in the 90s. Recently, DVDs of the show were released, and reader Milodon points out that like WKRP in Cincinnati, The Wonder Years and a variety of other classic TV shows, The State was unable to use the original music it had used when the shows aired:
Back in the free-wheeling 1990s, we had access to a huge library of popular songs to use as a soundtrack for the show. Today, licensing this music for the DVD would have cost us millions of dollars, and most of it was unavailable to us at any price. However, we have worked very closely with original series composer (and consummate rock star) Craig Wedren to carefully replace certain tracks, while maintaining the spirit of the original sketches as much as possible. The only moment in the whole series that we could not include on the DVD is a 15-second “link” where characters are singing a Pearl Jam song which we could not get the rights to.
Of course, we’ve seen how closely “the spirit” of the original music has been drained out of those other shows. Part of the reason these shows are such classics was their use of timely and evocative music. It still boggles my mind that it should even require any additional licensing. The music was licensed for the show. The DVDs are simply the same show. The music was already licensed. Why should it need another license? And, even if you grant the idea that it should get the license, why would anyone not let that happen? Having the music in these shows is never going to harm the market for that music or those musicians. It can only serve to draw more attention to that music, especially for people nostalgic for the time when the show aired.
Also, the page about the DVD notes one other bizarre change:
A few brand names and images had to be blurred or replaced for legal reasons.
I’m still trying to figure out what these “legal reasons” are. Last month we wrote about a lawyer whose job it is to make sure no brands appear unblurred in movies, but I’m struggling to understand the legal rationale behind this. It’s not a trademark violation to use a brand in a movie or a TV show. There’s not going to be any “confusion” from showing a brand or dilution of the brand because a long-off-the-air TV show isn’t competing with those brands. This is yet another sign of the ridiculous levels to which intellectual property law has taken culture these days.
Comments on “Once Again, Music Licensing Harms The DVD Release Of A Classic TV Show: The State Goes Generic”
Drop by drop the lifeblood of our culture is being drained into a huge cauldron, stirred by the giant beasts who only grow stronger with each death of a musical note that can no longer be heard.
Yeah, and?
“I’m still trying to figure out what these “legal reasons” are. Last month we wrote about a lawyer whose job it is to make sure no brands appear unblurred in movies, but I’m struggling to understand the legal rationale behind this. It’s not a trademark violation to use a brand in a movie or a TV show.”
Since when does that matter, Mike? It might get you sued anyway.
See the CSPD comic Bound by Law (don’t let the format dissuade you.)
Re: Yeah, and?
Mike’s statement “It’s not a trademark violation to use a brand in a movie or a TV show” is not accurate. It CAN be trademark infringement, and nowadays, it usually is. The rationale is that you’re not allowed to present a brand in a manner that would suggest an endorsement is going on. It’s called “false endorsement” — google it. There are plenty of cases on it.
It’s like if Nike showed a bunch of shots of Jordan making 3s and dunking like crazy, and kept popping up shots of Nike’s new shoe… but didnt pay Jordan or ask his permission. Anyone viewing that video is going to assume Jordan is endorsing the shoe, even if the commercial doesn’t say it.
With product placement so heavy nowadays, it’s become a de facto standard that if a product is cognizable from the label or trade dress, people are going to assume there’s an endorsement, and any opposition to the brand’s motion for summary judgment won’t pass the laugh test. That’s why you have people who make an entire living solely off of clearance.
Re: Re: Yeah, and?
“The rationale is that you’re not allowed to present a brand in a manner that would suggest an endorsement is going on. It’s called “false endorsement” — google it. There are plenty of cases on it. “
Yeah, the problem is when that gets twisted to make a ridiculous claim like “you can’t use that shot of Times Square because you didn’t get our permission to show our billboard.”
Re: Re: Yeah, and?
Mike’s statement “It’s not a trademark violation to use a brand in a movie or a TV show” is not accurate. It CAN be trademark infringement, and nowadays, it usually is. The rationale is that you’re not allowed to present a brand in a manner that would suggest an endorsement is going on. It’s called “false endorsement” — google it. There are plenty of cases on it.
And how in the world does that possibly make sense?
It’s like if Nike showed a bunch of shots of Jordan making 3s and dunking like crazy, and kept popping up shots of Nike’s new shoe… but didnt pay Jordan or ask his permission.
That’s a publicity rights issue, not a trademark one.
Re: Re: Re: Yeah, and?
You have the wrong mentality on a lot of IP. The question is not whether the artist benefits — it’s who benefits the most from the deal. If I make some song, and a movie studio wants to use my song, I ask myself who it benefits more. If I’m Joe Nobody, then I’m begging them to do it, and I’d probably even pay them. But if I’m Miley Cyrus and 4 of the current Top 40 are my songs, then fuck you, pay me… a lot. While most music and video have been commoditized, the top end certainly is not.
What most of your type of bloggers don’t understand is that price is supposed to be as close as possible to value received… not cost. Competitors simply lower the cost. And when you’re at the top of the charts, there aren’t many competitors.
Re: Re: Yeah, and?
Let me correct that to
With product placement so heavy nowadays, it’s become a de facto standard that if a product is cognizable from the label or trade dress, STUPID people are going to assume there’s an endorsement.
Unreleasable DVD thread
Beavis and Butthead will never be released in anything resembling its original form due to licensing issues. The version that has been released is a pale shadow of the real thing.
The images “had” to be blocked because of money as well.
As much as the producers complained that they could not afford to pay for licensing for the original music, they owners of the trademarks were refusing to pay tremendous fees to have their marks continue being shown on the DVDs.
I WANNA DIP MY BALLS IN IT!
Monkey torture was my all time favorite.
rerere
Hopefully, it won’t be long before these childish demands for money and licensing prevent ANY media from being released.
I think it will take something like that before these clowns figure it out.
Re: rerere
They won’t get it.
They will then blame ‘pirates’ and legitimate consumers (and probably DVRs in the very near future) for it like they always have.
This is a PRIME example of why Copyright is TOO LONG. It does not ” promote the Progress of Science and useful Arts” when culture can be LOCKED UP!. Copyright means you get paid for your work, and then others can use and build upon it. You got paid whwen it got used in the show, and then if you would let it be used in the dvd, holy S^%&, people might hear the song, and oh, I don’t know, BUY THE DISC, or the itunes download. These people are Killing culture,a nd SACRIFICING LONG TERM PROFITS, for the quick buck. Copyright should be 7 years, just like the Founders intended.
@ #11
I agree. In this fast paced world where a song can be pumped out to everybody who wants to hear it immediately, with very little distribution cost, if you can’t monetize an individual bit of creativity in seven years, you’re doing it wrong. The government-supported welfare system for already over-rich rights-holding corporations is hampering innovation and slowly strangling our culture.
Licensing
“It still boggles my mind that it should even require any additional licensing. The music was licensed for the show. The DVDs are simply the same show. The music was already licensed. Why should it need another license?”
It’s pretty simple – they licensed the songs for broadcast, not for the show. Since DVDs aren’t broadcast, they need to license them again.
Re: Licensing
It’s pretty simple – they licensed the songs for broadcast, not for the show. Since DVDs aren’t broadcast, they need to license them again.
I understand the reason it happens. I don’t understand why it makes sense. Because it doesn’t make any sense.
Oh so when you limit the audience by requiring purchase, it’s a new market? That makes sense, punish your fans for your high prices.
In my own small world, the greatest such crime was the release of -The Greatest American Hero-, specifically the episode “Operation: Spoilsport”. The plot -absolutely- hinged on Ralph continually hearing “Eve of Destruction”… but the DVD release substituted generic music. I can’t even watch the show (any ep) anymore.
Licencing
I have no worries about The States DVD’s. I have already
pirated all of the songs used in the show and I will just
have to dub them in myself. I must add that I attended
elementary school with Joe Lotruglio, a writer and player
in The State who now is a main character on Reno 911.
I’m sure he wouldn’t mind if I used one of his Rupture
Song riffs without a license.”When you’re slidin’ down
the wire and your balls catch on fire,that’s a rupture”.
Thanks Joe!
Replacements and Reasons
As an avid The State fan, I broke down and bought the DVD set, in spite of the knowledge that nearly all the music had been replaced (though I didn’t know about the deleted 15 seconds, but its not biggie since I strongly dislike Pearl Jam anyways). In most places, they’ve done a very good job of matching at least the style of the original music. There are some (like $240 Worth of Pudding) that are painful to watch because of the redubbing required:
The Original
From the DVD
There are a lot of interviews with David Wain regarding the DVD set, but one of the more interesting ones I ran across when checking into the music replacement was this one: http://sepinwall.blogspot.com/2009/07/state-on-dvd-david-wain-q.html. Wain basically says that it wasn’t a matter of money. In this case, the music owners simply wouldn’t license the music. I personally don’t understand why anyone wouldn’t want to license this music. Most of it hasn’t been heard in 10+ years, and I didn’t remember how good most of it was until I poked around YouTube looking for unaltered clips for comparison.
If I remember correctly, there was an old VHS of State skits released long ago…I wonder if they had to do any of the lame ass licensing then too, and if they did, why didn’t it carry over to the DVDs…seems like the same basic concept to me…
“Also, the page about the DVD notes one other bizarre change:
A few brand names and images had to be blurred or replaced for legal reasons.
I’m still trying to figure out what these “legal reasons” are.”
This is not the result of some defect in trademark law. The law is relatively straightforward and includes an incredibly important qualification that seems to be lost on many who opine on trademark law and what they perceive as its having a very broad scope. That qualification is the phrase “likelihood of confusion”, and in general it is subject to a “reasonableness” standard as measured from the viewpoint of an ordinary person (I am being quite general because here, so the forgoing should in no way be viewed as a definitive statement of the law).
The problem here is generally not one of law, but one of a mindset within many organizations to avoid even a potential, no matter how farfetched, liability. Obviously, this mindset reaches far beyond issues such as trademarks.
Perhaps the more pertinent question to ask is how did this mindset come into being in the first place? In all candor, I place the blame largely at the feet of lawyers who dabble in trademark law and have only a meager understanding of its construct and what it is intended to embrace within its scope. I have seen on more ocassions than I can count lawyers who view their role as solely limiting a client’s liability. Of course, this is an easy role to fill. It does not require any research to assess the likelihood of liability and quantify its scope. All it requires is a CYA opinion where every client question is answered by “No”. It is hard to get in trouble if you never do anything.
Long ago I received from my mentor one of the most valuable lessons about what it means to actually practice law. In essence, I was taught that clients do not seek out a lawyer to find out what they cannot do, but to find out what the can do within the bounds of law. I never ceased to be amazed that if an answer is virtually always a resounding “no”, why a client would even bother hiring a lawyer full time whose full time position is to say “no” and devote his/her full time attention to ensuring that”no” is enforced with vigor.
Merely FYI, as an amatueur photographer who on ocassion uploads some of my photos to a free stock site, I never cease to be amazed at the almost robotic application of rules as exemplified in your above article. “If a person can be recognised you must provide a model release.” “If a well-known building is within a photo you must provide a property release.” “If a photo contains a recognizable trademark it must be removed.” I can cite many other examples of rules that are being blindly applied without the slightest consideration being given to whether or not a real problem even remotely exists. In one case I was informed that a photo of the NYC skyline at night could not be hosted because one of the hundred or so building in the photo had its name atop the building. Never mind that you needed a magnifying glass to even see it. Of course, my comments on such sites noting what the law actually embraces are met with the stock phrase “We do not want to take any chances, so these are the rules and they must be obeyed.” I constantly shake my head in disbelief, marveling at the fact that the outcome of such policies is almost certainly a portfolio of bland photos bearing in mah instances little, if any, resemblance to real life. Does one seriously believe a lawsuit may follow based upon a photo of an individual in a Mongolian village? Does anyone seriously believe that a photo of a Perterbilt truck on the highway as a part of an ordinary street scene in which the name Peterbilt can be seen is going to lead Peterbilt to rush into a court and claim “foul”? Of course not. But hey, it is easier to say “no” than to give the question due consideration as to the metes and bounds of law.
I would never advise a client to purposely violate the law. However, I would fail to do my job in a professional manner if I did not give due consideration to the relevant facts and base my opinion on my analysis of the law in light of such facts.
As i previously noted, for many lawyers who practice law in what I and others term “cruise control, I submit that they fundamentally misapprehend what the practice of law actually entails. Small wonder so many lawyers are seen as little more than naysayers and not as an integral part of the business team.
Re: Re:
I think you fail to see the simpler reason that these rules are blindly applied.
There is no valid business reason to allow buildings / people to be identified in pictures you host if there is even a remote, slight and tiny chance that that could potentially result in a lawsuit, however frivolous.
If you are trying to set up or maintain a business, you avoid legal issues like the plague.
I’ve had to say “no” to potential partnerships (where I would be a reseller and supporter of software), because the partnership agreement stated that any legal issues would be filed in a US court (that’s a foreign country from where I sit in Canada). That would mean instant bankruptcy for me. Did I talk to a lawyer before making that decision? Nope. I have customers to gain and a business to run. It’s simply not worth the risk, and I’d rather forgo potential earnings than take such a risk. And I REALLY liked their (linux) software.
Come to think of it… I haven’t recommended that solution to any customers since that discussion with the vendor.
See how that works?
–GJ–
Re: Re: Re:
The problem is that to truly avoid even the potential for legal liability one would have to virtually shut down his/her business. After all, there is always the possibility in numerous industries that a “defect” could very well later result in strict liability for such defects. Hot coffee could place you in hot water.
The issue you raise concerning venue for dispute resolution is purely a business decision, and is certainly one I would have brought to your attention with a recommendation that it be removed from the agreement. The same can be said of numerous other clauses that are clearly overreaching. These are issues that business persons can easily grasp, and it does not require the expense of legal research to study the blatantly obvious.
Some issues, however, are not so blatantly obvious, and it is a lazy attorney who defaults to “no” without providing the client with an analysis that includes alternate paths that promote the client’s business objectives in a way that minimizes the possibility of future legal problems raising their ugly head and getting in the way of the client going about its daily business.
I understand the natural reluctance of anyone to engage in activities that at some later date might unduly interfere with ongoing and planned business activities. Like anything in life, however, risks can never be reduced to zero. The trick is to know when these risks may pose a threat and when they almost certainly will not.
Music is not the culprit
Producers are always asking for music for free (think of the promotion, guys). So publishers and savvy artists often reply, “OK, but we’ll charge you for other uses”. If the producers were too tight to pay for the full licence upfront where it costs less, more fool them.
At a time when people are trying to legislate for free music, I think it’s bit rich knocking publishers that are trying to turn a buck on a song. Why is it Pearl Jam’s fault if the producer of a show neglected to secure all rights or use his imagination and choose another topical song? Sounds like a double fail to me.
Everyone loses
My wife and I are just finishing the last of the four season series China Beach. The songs of the 60’s and 70’s are a major part of the plot.
But, for the stupidity of the reasons cited above, this great show is not available on DVD. Stupidity similar to the Vietnam war depicted on China Beach.
Irony? One episode showed the start of the use of Thorazine to treat PTSD, so a soldier could be redeployed quickly, which is regular practice in Iraq and Afghanistan.
But due to RIAA gestapo tactics, I acquired this from some tireless volunteer workers that expunged the commercials, transferred media from sometimes even home VCR recordings, dealt with layers of maddening public domain software, and published it on some often less than legitimate exchange reference point without the possibility of compensation.
But now I’m going to have to buy some of that music because I want it in my collection (12G ripped from CDs that I own). I didn’t know that Jefferson Airplane did White Rabbit.
And I have the money and inclination that if it had been available on DVD for a reasonable cost ($40/season), I would have bought it.
I love the 80's (and the 90's, to a lesser extent)
This past weekend I just watched Manhunter, Michael Mann’s excellent Miami Vice-y version of from 1986. One visual that will forever be stuck in my mind is the scene in the grocery store where the main character is telling his pre-teen son about how Hannibal Lecktor (how it’s spelled in the film) nearly killed him and drove him insane. It appears to have been shot in an actual grocery store, with shelves filled with clearly-visible Cap’n Crunch and Folgers… and Mr. T Cereal!! Imagine sharing that story with your little kid on the sugary cereal aisle.
Anyway, you don’t get scenes like that these days. Just thought I’d share. Slow day at the office. 🙂
What happened with The State...
…was that we had access to all of the “clip reels” which were all the music videos that were shown on MTV. Because music videos were considered “promotional”, the music from them didn’t need to be licensed as long as it was shown on MTV.
So technically using a Breeders song on “The State” was legally the same thing as just playing the Breeders video. So there were no license deals of any kind done specifically for use on “The State”.
David Wain
director/editor/writer/performer “The State”
Simplest solution: Pay a bit more for a license that includes usage in other media. No need to change the law.
As for: “If you can’t monetize an individual bit of creativity in seven years, you’re doing it wrong.”
The big hassle of making money from art of any kind is distribution and marketing. A copyright of only seven years would put more power in the hands of big distributors as they could wait until any work (whether they own it or not) becomes public domain and then release it en masse without compensating the artist at all. That’s why copyright was extended to “life + x.”
The real key to copyright reform is establishing a true legal difference between living individuals and corporations as rights holders and limiting corporate copyright to a clearly defined period (instead of the ambiguous “life +”).
I have a guess...
I have a guess...
I’m still trying to figure out what these “legal reasons” are. Last month we wrote about a lawyer whose job it is to make sure no brands appear unblurred in movies, but I’m struggling to understand the legal rationale behind this. It’s not a trademark violation to use a brand in a movie or a TV show. There’s not going to be any “confusion” from showing a brand or dilution of the brand because a long-off-the-air TV show isn’t competing with those brands. This is yet another sign of the ridiculous levels to which intellectual property law has taken culture these days.
My only guess at why brands are blurred out is because they didn’t want to risk having their name associated with “questionable” activity. Yeah apparently there are people out there think that a theif on a tv show drinking a can of Coke with Billabong shirt on is proof that Billabong and Coke support criminal activity and the parents of kids who commit crimes because they saw them on tv will be able to sue Coke and Billabong for influencing children.
To be fair, when something like, say, WKRP was made, nobody thought, “In the FUTURE (*aircar zips by*) people will buy this show on DISKS and watch them, and we will make money all over again!”
They thought of TV as a disposable product. A given episode might be aired three times, max, and after that, it was gone. So they never gave thought to licensing music in perpetuity.
If you want to see a real deal, check out how the Werewolf DVD release has been TOTALLY SCUTTLED by two holdout bands. Compulsory licensing would have been nice here.