Stupidity Of Licensing Demands Means The Wrecking Crew Can't Help Sell More Music With Documentary

from the this-makes-no-sense dept

Tue, May 1st 2012 1:33pm — Mike Masnick

A couple years ago, we wrote about a panel discussion with a couple of music documentary filmmakers, who discussed the ridiculousness of trying to clear the samples used in their films, even though the works almost certainly could only lead to increased music sales. The NY Times recently had a similar story, as a documentary movie about the group of studio musicians known as "The Wrecking Crew," who performed on a ton of the biggest musical hits ever, has been sitting around, finished but unreleased for over four years because of the impossibility of clearing the music in the film. Even though the music was all performed by The Wrecking Crew, whose members would love to see the film out there, the copyrights are held by a variety of entities, including the various major labels.

The article notes that the labels are so desperate for extra cash, that they're asking much more than they have in the past for licensing fees. But that's incredibly, stupidly, short-sighted. Getting a documentary like this out in the world could only serve to increase demand for a bunch of those songs, which would open up all sorts of opportunities to make some more money. But the labels can't seem to see past today in any of their activities.

Separately, as the article notes, the filmmaker could try to rely on fair use... except that the cost of actually defending a lawsuit (even if the lawsuit is bogus) could be quite prohibitive, especially since he's already spent a ton of his life's savings on the movie itself. And I thought copyright was supposed to encourage ways to get the music out there...

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Filed Under: licensing, samples, the wrecking crew

56 Comments

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Nathan F (profile), 1 May 2012 @ 1:41pm

Obviously the guy didn't have 100M to spend on making the movie (read: getting music licences) so there is no way the movie could make any kind of return. *nodnod*
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Lowestofthekeys (profile), 1 May 2012 @ 1:44pm

I've seen a number of AC trolls on here speak from the perspective of the "artist" when it comes to being deprived of money from their copyrighted material.

How about the trolls that speak from the perspective of the greedy corporate copyright holders?

Any takers?
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RD, 1 May 2012 @ 1:45pm

You thought so
"And I thought copyright was supposed to encourage ways to get the music out there..."

Its SUPPOSED to, the constitution says its supposed to, congress is tasked with making it so.

But in reality, it now only serves to permanently lock up culture for the benefit of a very few at the expense of the entire public. Fair use has been relegated to a "defense after lawsuit filed" instead of what it was intended to be: an EXCEPTION.
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:Lobo Santo (profile), 1 May 2012 @ 1:49pm

Re: Well...
*Ahem*

It takes very creative interpretation of the laws in order to be such an incredibly dickish, short-sighted, extortionist bastard without having done anything illegal.

As we all know, creative people are know as "artists"

Therefore, these "Artistic Lawyers" are blocking the "hippy artists" from getting anything with their penniless problems--no pay, no play!

/expert-troll
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Anonymous Coward, 1 May 2012 @ 1:50pm

the main reason the labels get away with this type of thing is the fact that they have a bottomless money pit, whereas individuals or a group of people involved in the making of something have extremely limited resources. therefore the labels are in a 'win-win' situation, even if it takes a lifetime to achieve the desired result.
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Anonymous Coward, 1 May 2012 @ 1:52pm

I think that part of their problem is that they (like someone else we all know) started by making a finished product, and then tried to get permission and rights organized. In essence, that means the rights holders have you sort of dead - you can't move forward without them.

"Getting a documentary like this out in the world could only serve to increase demand for a bunch of those songs"

No clear - would the documentary actually get a wide enough viewership to really mean anything?
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Jake (profile), 1 May 2012 @ 1:55pm

I have long been in favor of a loser pays tort system in the US. That would definitely mitigate this sort of thing.
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Anonymous Coward, 1 May 2012 @ 1:55pm

so leak it
just throw it up on tpb and declare it leaked! oops!
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Anonymous Coward, 1 May 2012 @ 1:56pm

Copyright spurs creativity they say...........
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Anonymous Coward, 1 May 2012 @ 1:57pm

"No clear - would the documentary actually get a wide enough viewership to really mean anything?"

After 4 years? Probably not. Now which parties have fiscally prevented the release of that documentary for 4 years?
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jjmsan, 1 May 2012 @ 1:57pm

Re: Re: Well...
I've got one.
"We have to change more money up front because people will only download the music for free. Thus we really won't get more sales."
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Jake (profile), 1 May 2012 @ 1:58pm

Re:
"No clear - would the documentary actually get a wide enough viewership to really mean anything?"

This point should be moot. If it does get the viewership it is bound to help, and if it doesn't it will not cause any damage to the original work so there would be no harm the the copyright holder. The labels should look at it as a no-lose situation, instead they look at it as a money grab, their problem is that in this case there appears to be no money to grab, so instead of a no-lose situation it becomes a lose/lose situation.
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Anonymous Coward, 1 May 2012 @ 1:59pm

Re: You thought so
RD, can you show us where the constitution or copyright law for that matter says something about making it cheap and easy to re-use other people's works?

Promoting progress doesn't mean a free license to re-do other people's music. Is that really progress, or just more standing still?
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Anonymous Coward, 1 May 2012 @ 2:00pm

Re: Re:
You would think it is moot, but think about it - they are trading off millions of dollars of licensing for, what, maybe a few more sales? Is it really worth it?
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Jeremy2020 (profile), 1 May 2012 @ 2:13pm

Re: Re: Re:
You're saying this film wouldn't generate many sales because it would not be seen by many people, but it should cost millions for licensing the music?
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Anonymous Coward, 1 May 2012 @ 2:16pm

Re: Re: You thought so
How culturally boring.
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RD, 1 May 2012 @ 2:16pm

Re: Re: You thought so
"RD, can you show us where the constitution or copyright law for that matter says something about making it cheap and easy to re-use other people's works?"

Wow you actually said that. Ok.

http://www.copyright.gov/fls/fl102.html

I assume an actual government website should be sufficient even for you.

"Promoting progress doesn't mean a free license to re-do other people's music. Is that really progress, or just more standing still?"

Except they didnt "re-do other peoples music." If they had, had they done an actual REMAKE of each song, there is already statutory fixed costs for that that would have been FAR cheaper.

They only used PARTS of the song to illustrate the history of the actual musicians who made those songs. Thats defacto fair use right there.

But they want significantly more money for using these snippets than would cost if they redid the ENTIRE song as a cover song. Its absurd. And so are you for asserting the garbage you did in this post.
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jupiterkansas (profile), 1 May 2012 @ 2:16pm

Release it for free without the music and a big disclaimer as to why at the beginning. A little public opinion on this can do wonders. It'd be pretty funny to watch a documentary about musicians and never hear a note of music. I can just see the silent footage of them playing in the studio.
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Anonymous Coward, 1 May 2012 @ 2:21pm

Re:
or release it without music and possibly self assembling instructions of where music should be. The internet could sort the rest.
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Richard (profile), 1 May 2012 @ 2:26pm

Re: Re: Re:
they are trading off millions of dollars of licensing for, what, maybe a few more sales? Is it really worth it?

but they are NOT GETTING the millions of dollars are they - they are getting nothing.

They are just acting like the proverbial dog in a manger.
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khory, 1 May 2012 @ 2:27pm

Re: Re: Re:
Are you saying that it is to their advantage to jack up the fees to an that is unaffordable? And get no money where they had potential to get something?
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Anonymous Coward, 1 May 2012 @ 2:27pm

Re: Re: Re:
Millions from where?
You are hopping Steven Spielberg will license that music?
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Anonymous Coward, 1 May 2012 @ 2:29pm

Re: Re: Re: Re:
You're saying this film wouldn't generate many sales because it would not be seen by many people, but it should cost millions for licensing the music?
Well obviously!

We all know that when someone copies something, the person who owns the thing that was copied loses money - it comes right out of their bank account! This is why it's considered stealing.

Now, these dirty, dirty, pirates - umm, I mean filmmakers - will be making money on these copies, all while the legitimate lawyers and corporations are actively losing money - so they need to charge double the amount they're losing just to break even!

Plus, as only a dirty un-american communist hippy type would do this for free, they have to make a profit - and as Congress had decreed that each copy is worth $150,000 each, even 10 million dollars is a bargain!
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Michael, 1 May 2012 @ 2:30pm

Re: Re: Re: You thought so
If you find an online copy of the U.S. Constitution and search for "copyright" do you know how many instances there are? Not one.
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Anonymous Coward, 1 May 2012 @ 2:33pm

Re:
If you can only see the performance of music and not hear it, does a performance license still obtain? sounds like a dumb question, but given what passes for legal claims in this industry..... who knows!?!
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Michael, 1 May 2012 @ 2:36pm

Composers or Performers
Composers typically hold the copyright (or they exchange their right to copy to someone or something (read record company)).
Performers are often hired to play (especially studio musicians (read The Wrecking Crew).

Hired performers probably don't have the right to copy.
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Anonymous Coward, 1 May 2012 @ 2:55pm

Re: Re: Re:
Well, actually, they're trading off $0 in licensing for "maybe a few" more sales.
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Silence8, 1 May 2012 @ 3:01pm

Oh wow, got invited to a screening of this from Damon Tedesco (Tommy's other Son)a long while back, didn't get to go, but figured I'd get another e-mail letting me know it was on DVD or something. Didn't know they were going through all these issues.

Sucks when you can't even document your own Father's history as a musician and share it with people.
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Silence8, 1 May 2012 @ 3:14pm

Re:
http://wreckingcrewfilm.com
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Anonymous Coward, 1 May 2012 @ 4:07pm

Re:
Ok, so if no one watches it, then no one hears the music. Where's the problem?
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gorehound (profile), 1 May 2012 @ 4:18pm

The best thing to do now is to not put your John Doe on any Contract from a large Label or RIAA.
I am an Artist and have no issues with someone using my music for a TV Show, Movie, or INDIE Content.I am INDIE and I own my Art and no one else will ever own it.
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bongo houzi (profile), 1 May 2012 @ 5:13pm

shortsighted
Universal Music, Warner Music group, EMI, and Capital Records; you suck and would rather shoot yourselves in the foot than do the right thing. Why?
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Bengie, 1 May 2012 @ 5:18pm

wrong way
They're doing it wrong. They're suppose to go to the music execs and ask the execs to pay to have said music advertised.
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Anonymous Coward, 1 May 2012 @ 7:58pm

Other similar films have been released on DVD.
"Standing In The Shadows of Motown' for one.
I guess
1) You need to get the label or labels onside from the beginning.
2) You can bypass recording copyright by re-performing the classic songs, EXACTLY as they did in the Motown film.

Finally, yes THe Wrecking Crew were session musicians who were paid a straight fee and never held any rights (performance or otherwise) for the recordings they played on.
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Anonymous Coward, 1 May 2012 @ 8:28pm

Re: Re: Re: Re:
I find it funny that people think your comment is "insightful", because it actually seems to be pretty closed minded.

Actual sales generated is not a measurement that decides what the rights to something costs. Many uses of a musical piece might not lead to huge amounts of sales for the original artist.

There is no relationship. Anyone thinking your comment is insightful really isn't thinking too hard, are they?
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Anonymous Coward, 1 May 2012 @ 8:38pm

We need to Kickstart more Public Domain / CC0 Music
I would be happy to kick in a few bucks for any talented musician willing to release their music (singles / albums / whatever) under the Public Domain Dedication / CC0 license. (Much like these folks have done: http://www.kickstarter.com/projects/293573191/open-goldberg-variations-setting-bach-free )
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Ed C., 1 May 2012 @ 9:42pm

Re: Re: Re: Re: Re:
*clap*
*clap*
*clap*
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Anonymous Coward, 1 May 2012 @ 9:44pm

Re: Re: Re: Re: You thought so
Yes, but he was responding to 'constitution or copyright law,' so your response is out of line.
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Ed C., 1 May 2012 @ 9:53pm

Re: Re: Re: Re: Re:
Nice dodge, but try answering the question, why does the licensing cost so much?

Many uses of a musical piece might not lead to huge amounts of sales for the original artist.

Of course the original artist don't get huge sales for many uses of their works, it goes to the labels. Even when the artist isn't under contract.
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techflaws.org (profile), 1 May 2012 @ 9:54pm

Re: Re: You thought so
Is that really progress, or just more standing still?

The movie is not being made, nobody wins. Yeah, I'd call that standing still. Well done, rightsholders.
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techflaws.org (profile), 1 May 2012 @ 10:01pm

Re: Re: Re: Re: Re:
So what is your insightful take on what the proper measurement should be?
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Anonymous Coward, 1 May 2012 @ 11:31pm

Re: Re: Re: You thought so
"They only used PARTS of the song to illustrate the history of the actual musicians who made those songs. Thats defacto fair use right there. "

Oh god, it's defacto nothing you pill head. You are worse than Mike is calling fair use on everything.

Look, let's try to make it simple. Your argument is that copyright law is suppose to do something - so when I ask you to point out EXACTLY where this means that you should be able to license others people's music at a low rate and use it without concern, and you point generally to copyright law.

WTF? I can find a copy of the law by myself. I am asking you to explain your deluded notions, point to where the law specifically says "you must license your work cheaply", and I will even go further to say where in copyright law it says "you must license to others" at all. It doesn't.

Between that and fair use, I would say you have some CAPITAL issues to address.
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Anonymous Coward, 1 May 2012 @ 11:33pm

Re: Re: Re: Re: Re: Re:
"Of course the original artist don't get huge sales for many uses of their works, it goes to the labels. Even when the artist isn't under contract."

Nice dodge. Try "original artists or those they have sold the rights to".

Now, address the issue - why allow free use of material that MIGHT drive a few sales, when you can charge a reasonable license fee and allow the documentary creators to take the risk instead?
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Anonymous Coward, 1 May 2012 @ 11:35pm

Re: Re: Re: Re:
No, they are trading one of three things:

1 - a few sales
2 - $ licensing deal
3 - non-release, non-issue.

Remember, it's the film makers that WANT to use the music, not the rights holder seeking to get it exposed. Giving the rights to the music for free to anyone walking in the door hoping that they generate you some sales seems pretty silly.
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Anonymous Coward, 2 May 2012 @ 2:44am

Re: Re: Re: Re: Re:
Yes, your invented scenario where they give the rights for free to everyone walking in the door is pretty silly. That's why you invented it.
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The eejit (profile), 2 May 2012 @ 3:41am

Re: Re: Re: Re: Re: Re: Re:
Then why not license it for a percentage of future profits? OR is that too Hollywood for them?
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Niall (profile), 2 May 2012 @ 7:20am

Re: Re: Re: You thought so
So in other words, they'd be better off making covers of all the songs, then sampling the covers...
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Niall (profile), 2 May 2012 @ 7:28am

Re: Re: Re: You thought so
So in other words, they'd be better off making covers of all the songs, then sampling the covers...
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Anonymous Coward, 2 May 2012 @ 7:47am

Re: Re: Re: Re: Re: Re: Re:
What is this "risk" you keep talking about? Please explain how the copyright holders would be harmed in any way by licensing the music for use in the documentary whether for free, $1/song, or the millions that they're seeking.
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ahow628 (profile), 2 May 2012 @ 8:06am

Re: so leak it
And throw a URL in the movie to your site with a donate link on it. Bet you it would make a killing.
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jupiterkansas (profile), 2 May 2012 @ 8:15am

Re: Re:
They'll claim lip readers can figure out the lyrics, and that counts as a performance.
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terry (profile), 2 May 2012 @ 8:29am

Re:
If it has no viewership, there is no harm done. If it has viewership it promotional. The only may its a loss for the gatekeepers is to make sure its closeted and piss off fans that go to such lengths as making documentaries and those looking forward to seeing such films.
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Anonymous Coward, 2 May 2012 @ 8:52am

Re: Re: Re: Re: Re: Re: Re: Re:
When you give something for free with the hope of selling something else later, it's called taking a risk. Basically, you risk the loss of licensing income now, in order to hopefully make money later. Risk.

Some might call it "give it away and pray".

Even if the license was $100 a song, giving it away for free would be a risk. Would the license at $100 make more than the sales driven by this work?

Further, you have to remember that the documentary makers are not working to sell music - they are working to monetize their documentary and make money from it. They aren't working to sell music, it MIGHT be a side effect, but there is absolutely no guarantee.

Those who hold the rights have no reason to take the risk. They have a product that is in demand, and they can license it for what the market will bear. Basic free enterprise. If the film makers feel they are going to make a lot of money with their movie, they can afford to license it - at their risk. They can pay the money and hope they make it back.

if they don't think it is worth it, then they can just say "nevermind" and not finish the project.

There is little loss for the rights holders - they still hold the rights, they can still sell them on to others, and they are likely still selling recorded copies of their music regardless. The loss of the potential incremental sales from this documentary is not a big deal, and certainly at least as mythical and unproven as losses from piracy. How many sales did they lose by not licensing? Show me how you figure that one out!
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Silence8, 2 May 2012 @ 10:13am

Re: Re: Re: You thought so
But the movie HAS been made, and has won multiple awards at festivals. http://wreckingcrewfilm.com
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Anonymous Coward, 2 May 2012 @ 1:07pm

Re: Re: Re: Re: Re: Re: Re:
"a reasonable license fee"

Your point is invalidated by this statement. Charging more money than a documentary likely would, or even COULD bring in is not a "a reasonable license fee".
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Anonymous Coward, 7 May 2012 @ 9:17am

Director
I've heard the director on various talk shows. There are more than 100 songs that are featuring in the film either in clips or in performance. Getting the rights from the record companies as well as from the song's copyright holders is a nightmare. The rates are structured for big feature films that may have a million dollar or more music budget and no one will budge on the fees for fear that the filmmaker might actually make a profit and they won't get any of it!
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