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.
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Filed Under: copyright, dvds, licensing, the state


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  1. identicon
    Anonymous Coward, 10 Sep 2009 @ 9:34pm

    "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.

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