Music Licensing Rights Hindering Hulu As Well

from the live-by-copyright,-die-by-copyright dept

Wed, Jan 28th 2009 8:11am — Mike Masnick

The main backers of the online video site Hulu, NBC Universal and News Corp., are two of the stronger supporters of our copyright system, and have, at times, been known to push to make it even more stringent in order to "protect" their works. So, it's interesting to see them discovering that draconian copyright rules can come back and bite them as well. We were just covering some of the problems various TV shows have had being put on DVD due to licensing problems, and now it appears those same problems are making it difficult to get some shows up on Hulu -- despite the fact producers would like those shows online.

One of our readers, named Mark, wrote in to let us know that he and his wife had been watching the old TV show The Pretender on Hulu, when they realized that some of the episodes were simply missing (including the entire final season). He wrote to Hulu to ask why, and was told:

"Thank for letting us know that some episodes from The Pretender appear to be missing from our lineup. Individual episodes are sometimes held up due to rights issues, quite often related to music used in the show - and that's the case this time - some of the music in episodes 17 and 18 couldn't be cleared for online streaming. We'll continue to request them from our content partner, but at this time we can't offer them though we'd love to."

It's still difficult to understand why we would ever design copyright law and licensing policy in this manner. After all, having certain songs included in a TV show is never going to hurt the commercial viability of a song.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: hulu, licensing
Companies: hulu

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ima Fish, 28 Jan 2009 @ 8:22am

It's even more difficult to understand why anyone would actually bother to watch the Pretender.
[ link to this | view in thread ]
sf suave, 28 Jan 2009 @ 8:27am

No Hulu in the UK
I'm guessing that the same or similar licensing is the reason that we're unable to view Hulu in the UK too
[ link to this | view in thread ]
Adam_v1, 28 Jan 2009 @ 8:44am

What i never understood was didnt they already have to license the music when they put it in the show in the first place?

Adding another layer or restrictions on how you can later distribute media because your old license didnt include a newer technology always seemed above and beyond stupid to me.
[ link to this | view in thread ]
Phibble, 28 Jan 2009 @ 8:54am

Just one more example of how labels/RIAA hurt the artists they represent.

Indie artists would love to get their tunes on these shows (at a fraction of the cost) because it gives them exposure, thus helping sales of music & merch.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2009 @ 9:06am

But they need to be paid, Mike. How can artists be paid if they don't have liscencing rules in place to tie up their content? And if they can't get paid, why would they ever make music in the first place?

This is probably just a case where the greedy producers won't pay the artists -- who certainly control their own copyright -- the fair and just price that's being asked. Hulu just needs to loosen the purse strings a bit and then everyone will be happy.
[ link to this | view in thread ]
iNvEStMeNt CoMpLiaNcE, 28 Jan 2009 @ 9:17am

I agree with the artists. They deserve p[ayment if online streaming wasn;t in the agreement
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2009 @ 9:22am

Artists- HA!
"But they need to be paid, Mike. How can artists be paid if they don't have liscencing rules in place to tie up their content? And if they can't get paid, why would they ever make music in the first place?

This is probably just a case where the greedy producers won't pay the artists -- who certainly control their own copyright -- the fair and just price that's being asked. Hulu just needs to loosen the purse strings a bit and then everyone will be happy."

Remember, the Artist won't get a penny from this, only the company that holds the rights to the music.

Claiming "for the Artist" crap doesn't work because they don't make money from selling music.
[ link to this | view in thread ]
Liam, 28 Jan 2009 @ 9:27am

@ number 7
Oh noes! you're eSarcasm meter failed.
[ link to this | view in thread ]
the angry intern, 28 Jan 2009 @ 9:27am

Re:
the only problem with wishing Hulu would loosen its purse strings is then their overhead costs are more and they'd be more likely to start charging for their service, which will driver people away to other services.

The whole music licensing thing in TV shows has always pissed me off. Especially when you get an old show you liked on DVD only to realize that the *THEME* song is different! How the crap can you not allow the show's damn theme song to be included on the DVD. The first example that comes to my head is the show Tour of Duty, which was one of my favorites when it was on the air. The theme song was "Paint it Black" by the Rolling Stones and it was a perfect song for the show. It's not the theme song on the DVD, which kinda ruins the nostalgia.
[ link to this | view in thread ]
bulljustin, 28 Jan 2009 @ 9:56am

Follow the money
It's still difficult to understand why we would ever design copyright law and licensing policy in this manner.
Greed, pure and simple. Our Declaration of Independence claims we are all born with the Inalienable Right to Life, Liberty, and the Pursuit of Happiness. For most that means a comfortable life, good lawyers, and pursuing money. Greed is a part of of our national character and both our foundation and our laws reflect it.
[ link to this | view in thread ]
Peter Kafka, 28 Jan 2009 @ 9:57am

Yup. This doesn't just apply to Hulu, of course - any site that puts up TV content has this problem. More often a problem with older series. But it's not always music rights - sometimes it's an issue with clearance from the talent - a guest star on an episode of a sitcom, etc.
Has nothing to do with why you can't see Hulu in the UK. That has to do with the fact that TV and Web rights are assigned on a country by country basis. So Hulu can't show you its stuff in the UK until its worked out issues with BBC and other networks there.
[ link to this | view in thread ]
Monarch, 28 Jan 2009 @ 10:02am

Re: Artists- HA!
No this is a case of the Greedy Rights holder wanting to get paid a 2nd time for the same use of the product!

How I wish every other maker of every prop used in the shows would start suing for the use of their vehicles, clothing, furniture, food, drinks, and ect., ect.. Then we could easily show how stupid copyright law is!

The designer and maker of the clothing that is worn on the show only got paid once! That company or person does not get royalties for each showing! Maybe they should! Why does the rights holder of a song that was used get paid over and over again?

It's freaking pathetic! If it were real property, and not intellectual property, it would have been free to use as soon as the producer purchased the CD it was on from the local store, just like every other product or sound involved in the show!
[ link to this | view in thread ]
Monarch, 28 Jan 2009 @ 10:03am

Re: by Anonymous Coward on Jan 28th, 2009 @ 9:06am
No this is a case of the Greedy Rights holder wanting to get paid a 2nd time for the same use of the product!

How I wish every other maker of every prop used in the shows would start suing for the use of their vehicles, clothing, furniture, food, drinks, and ect., ect.. Then we could easily show how stupid copyright law is!

The designer and maker of the clothing that is worn on the show only got paid once! That company or person does not get royalties for each showing! Maybe they should! Why does the rights holder of a song that was used get paid over and over again?

It's freaking pathetic! If it were real property, and not intellectual property, it would have been free to use as soon as the producer purchased the CD it was on from the local store, just like every other product or sound involved in the show!
[ link to this | view in thread ]
Chuck Norris' Enemy (deceased), 28 Jan 2009 @ 10:06am

What is the deal with rights?
My wife watched the show when she was a teenager and got all the seasons DVD (I have watched parts, terrible). The music rights must have been cleared for the DVD release. How much harder could it be to get the rights cleared for streaming? Oh wait, there are lawyers involved.=P
[ link to this | view in thread ]
Mark Blafkin, 28 Jan 2009 @ 10:10am

A little more complicated than You're making it out to be...
We can all get frustrated with examples like this, but to simply blame copyright law and all its excesses misses the point, particularly on this issue.

The problem here is NOT copyright law, but the emergence of new markets and the contracts that are signed around music.

At the time when shows like the Pretender were hitting the airwaves, there was general movement toward featuring pop music in episodes. Cross marketing if you will. However, the concept of DVD sales of episodic content was NOT a significant issue when those contracts were negotiated. Translation, those rights were not granted to the producers of the TV show. Now that DVD sales and internet streaming are widespread and profitable, the producers are rushing to get sign new contracts with those artists, or, in some cases replacing the music in the DVD versions of the episodes (I remember reading a few articles about this with the DVD's for Smallville). I'm guessing the new deals television producers draft include provisions for DVD and online viewing.

To make matters worse, for any one piece of music, there are often several rights holders (musician, producer, song writer, etc.), which makes licensing a true challenge.

There are plenty of reasons to complain about the excesses of copyright law, but this isn't really one of them. Yes it's annoying, but I bet it is a short term problem created by the rapid adoption of new technologies and short-sighted (or cleverly far-sighted) contract writing.
[ link to this | view in thread ]
Mike (profile), 28 Jan 2009 @ 10:19am

Re: A little more complicated than You're making it out to be...

The problem here is NOT copyright law, but the emergence of new markets and the contracts that are signed around music.

I'd argue otherwise. I think any reasonable transaction that involves purchasing music to work with a show, it should be clear that any other formats of the show would automatically be included. The only reason it's an issue is because copyright law requires separate licensing for different forms of display and performance.

At the time when shows like the Pretender were hitting the airwaves, there was general movement toward featuring pop music in episodes. Cross marketing if you will. However, the concept of DVD sales of episodic content was NOT a significant issue when those contracts were negotiated. Translation, those rights were not granted to the producers of the TV show.

But it's copyright law that sets it up such that those rights are separated.
[ link to this | view in thread ]
hegemon13, 28 Jan 2009 @ 10:39am

Re:
They licensed it under a different type of license, which allows them to broadcast it, but not distribute it. It is quite sad that this holds things up so much when it could be free promotion for old artists to revitalize sales of some of their older stuff.
[ link to this | view in thread ]
Erv Server, 28 Jan 2009 @ 10:46am

insane
Ridiculous just ridiculous.
[ link to this | view in thread ]
Skott Klebe, 28 Jan 2009 @ 10:59am

It IS a little more complicated than you're making it out to be...
>I think any reasonable transaction that involves purchasing music to work with a show, it should be clear that any other formats of the show would automatically be included.

Including unanticipated future markets? Uses that didn't exist at the time of the license? Uses that the licensee doesn't even want?

I don't know how you expect that kind of license to be priced. The licensee generally tries to purchase as narrow a license as possible that will grant all the permissions needed for the reuse. The licensee doesn't WANT to buy an unlimited license, because it will cost so much more. The producers of the Pretender were able to afford to incorporate the music in their show because they limited the uses they wished to license.
So why do rightsholders charge more for a do-anything license than they do for a limited use? Because otherwise they foreclose future opportunities for themselves. What you're arguing, in essence, is that rightsholders should sell something like unlimited nonexclusive electronic distribution rights for the same price they would charge for first broadcast, syndication, and DVD today.
If they did that, the licensees would say, "But I don't WANT to pay for unlimited distribution. I only want broadcast, syndication, DVD, and streaming." Nobody wants to pay for more than they think they will need.
And so it goes.
Rights issues are hard, but then, all property issues are hard. I could go on and on about they way the fences in my neighborhood never correspond to the lot lines, and comical issues that result.

>But it's copyright law that sets it up such that those rights are separated.

If changing copyright law in the fundamental way that you hint at could address the underlying issues of human carelessness, short-sightedness, and cupidity, I'd be all for it. Shorten the term of copyright? Yeah, I'm for that. Address proportionality of infringment penalties? Yeah, I'm for that, too. Look into antitrust implications in the way that labels deal with artists? I wouldn't be surprised if stuff turns up.
But divisibility is at the heart not just of copyright, but property law in general. That's not just throwing out the baby with the bathwater, it's also getting a tubal ligation and/or a vasectomy just because the baby's done with the bath.
Or so people can watch Pretender. Srsly.
[ link to this | view in thread ]
Jacob, 28 Jan 2009 @ 11:00am

I have Netflix and stream many TV shows since that is most of the stuff they have that is worth watching. I often find that while there are entire seasons, or even series available to stream, there are a few episodes that can only be seen by renting the disc.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2009 @ 11:50am

Re:
Even for bands that wrote songs and made contracts before there was an Internet? Why? What sense are you trying to make?
[ link to this | view in thread ]
The Same Anonymous Coward, 28 Jan 2009 @ 11:52am

Re: @ number 7
Unfortunately, maybe it didn't. My post does sound like some of the stuff people say in sincerety around here sometimes. I need to try to be more absurd...
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2009 @ 11:59am

Re: It IS a little more complicated than you're making it out to be...
O.o

So... you think that bands wouldn't be competing for the chance to be featured on TV? If one artist's prices are too high, find another. I'm told mucisians are a dime a dozen these days... I mean, hell, they're being paid for free promotion, presumably directed at their target audience.
[ link to this | view in thread ]
not sure, 28 Jan 2009 @ 12:03pm

Re: No Hulu in the UK
Exactly right. Intl rights are a huge money maker, so naturally they are protected.
[ link to this | view in thread ]
burg, 28 Jan 2009 @ 3:34pm

Say what you will people.. The fact is that much of the music used in repurposed shows are not from commercial artist. They are music libraries whose sole purpose and only source of income is to create music that will be used for this purpose. Rates are generated based on the medium and the size of the audience. You think that an entirely new medium should just be thrown in? You're out of your mind. There is absolutely no value in more exposer to that song. In fact it devalues the song because it is used again and less likely to be picked during the creative process.

Sorry for spelling errors.. On an iPhone
[ link to this | view in thread ]
ChurchHatesTucker (profile), 28 Jan 2009 @ 6:48pm

Cue Nelson
Ha Ha!

Oh wait, that screws me too. Bastards.
[ link to this | view in thread ]
Jesse, 28 Jan 2009 @ 7:19pm

Here's one thing I've wondered. If I use a proxy to access Hulu from Canada, am I breaking any copyright (or other) laws? I don't think proxies are illegal...right? Just because they left an obvious loophole in their setup, should I be considered culpable?
[ link to this | view in thread ]
Productiontrax.com, 29 Jan 2009 @ 10:26am

Copyright Laws
If you're going to get rid of copyright law on the grounds that intellectual property should be managed under the same rules as physical property, you'd most likely re-work the whole patent system as well.
[ link to this | view in thread ]
Mark Blafkin, 29 Jan 2009 @ 10:37am

Re: Re: A little more complicated than You're making it out to be...
"But it's copyright law that sets it up so that such rights are separated."

I humbly disagree, Mike. This is not the fault of copyright law at all, but the contracts that are written. The artists involved could easily sign a contract that gives the producers full rights to any future forms of display and performance. Copyright law doesn't prevent that at all. The contracts do.

Make sense?
[ link to this | view in thread ]
Tony, 29 Jan 2009 @ 10:52am

Re:
"This is probably just a case where the greedy producers won't pay the artists -- who certainly control their own copyright"

Actually, in most cases the artist does NOT control their own copyright. The copyright has been sold to the label. The artist no longer has any say.
[ link to this | view in thread ]
Tony, 29 Jan 2009 @ 10:54am

Re: Re: Re: A little more complicated than You're making it out to be...
"The artists involved could easily sign a contract that gives the producers full rights to any future forms of display and performance."

Only it's not the ARTISTS who are signing those contracts - it's the labels that the artist sold the rights to in the first place. The artist typically has nothing to do with any of this.
[ link to this | view in thread ]
Miss Parker, 2 Feb 2009 @ 8:02am

the pretender
I don't get why there is an issue with international copyright for the music, when Hulu does not stream to an international audience - I know because none of the content is available outside the US, many fans complain about the lack of access because The Pretender has a worldwide audience and fandom.
The Pretender, btw, is awesome television and it deserves to be on the air instead of what passes for entertainment these days!
Happy Birthday to The Pretender star, Michael T. Weiss!
[ link to this | view in thread ]
carol, 4 Feb 2009 @ 11:07pm

hulu commercial
your commercial on television with alex baldwin gives me the creeps. I now turn the station whenever it comes on. But it did get me to look on the internet to see exactly what it is. I guess that is the whole idea.
[ link to this | view in thread ]