September 1996

The Rights Stuff

How old laws create new opportunities

Everywhere you go, everyone's screaming about copyright. Fair use, re-purposing, electronic rights, digital signatures, offshore counterfeiting, elctronic watermarks, works for hire -- all of a sudden, these terms are part of everybody's every-day vocabulary. As the digital revolution worms its way into all realms of our existence, from records to magazine articles to dirty pictures, and nothing is safe from the threat of infinite, perfect replication, the protection of "intellectual property" that copyright law provides has become increasingly important. The debates about that protection, what it means and how to extend it, are flying fast and furious. What are the rights and limitations of the copyright holder, or of the user of a copyrighted work? How do consumers know that they're getting a genuine article? How do owners of intellectual property protect themselves and their livelihoods? How does anything retain value when everything is available for free?

Some of these issues need to be resolved quickly, or whole industries will fall. On the other hand, some of them are going to take a while -- witness the suit by the Music Publishers Association against CompuServe about dissemination of MIDI files without compensation to the original composers: it's three years old, a "settlement" was announced at the beginning of the year, but CompuServe still isn't accepting any MIDI File uploads, even if the uploader swears they're his or own own compositions.

There are folks who think copyright is outmoded in the digital age, and that all information wants to be free. Among these are the anarcho-libertarians -- most of whom, it seems, get regular royalty checks or have obscure but comfortable academic sinecures (not that I'd turn down either...), or else are just mad at how much they spend each month at Tower Records. Allow me to say that I don't have much truck with them because frankly, I'd rather be doing this than flipping burgers, thank you very much. I'm afraid that this society does run on money, and no matter how much some of us love what we do for a living, if we couldn't get paid for it, we'd be doing something else.

So copyright is here to stay. But the rules are changing. Authors are finding their works showing up on CD-ROMs, whether they want them to or not, or books that they wrote being published without their names on them, because they neglected to make sure there was an "author's credit" clause in their publishing contract. Publishers are putting vague "all rights in any medium" clauses into contracts to make sure that what they pay for now, they won't lose when the next format rolls around.

In the music business, things are particularly weird because the laws governing sound recordings are markedly different from those applying to other intellectual works, thanks to the pitched battles fought some 70 years ago between songwriters like Irving Berlin and the makers of player piano rolls. Terms like "compulsory mechanical royalties" and "master license", which keep things very lively in our part of the world, are unknown to literary, film, or visual art types. So -- and this ties in with this issue's theme, in case you were wondering -- agreements worked out between various parties for the rights to sell videos and films may very well not apply to the music that goes with those works. For example, the movie It's A Wonderful Life for some years could be seen several times a day around the holidays on every low-budget UHF and cable station. That's because the copyright on the film had lapsed, and anyone could show it as many times as they wanted, for free. However (the story I heard goes), the heirs to the composer of the film's score showed up one day, pointed out that their copyright was still in force, and the movie vanished.

This situation may be a headache for movie producers and studios, but it has the potential to be very good for us audio folk, as the following few stories will bear out. As you will see, there are copyright issues that we have to deal with, and can take advantage of, that no one would have even thought of 20 years ago.

Scenario number one: Years ago, before Maury Povich and Ricki Lake, television networks produced real programs, and nature documentaries were among their favorites (no actors to pay, for one thing). Some of those documentary series were quite good, and still hold up well today. When the home video boom took hold, even network executives could figure out that it would cost them little and gain them much if they were to issue those old nature series on VHS, and make them available through video stores and catalogs. Since they owned all the rights to the pictures and the scripts, they thought could just call the duplicators and go for it.

Except for one thing: the music. Sometimes the music was original, and was contracted as a work for hire, so there was no problem. But in many other cases, a series would create a soundtrack from pieces of classical music on records, and often edit the picture to fit the music. Since the programs were originally broadcast over licensed stations, all of whom pay annual fees to ASCAP and BMI for the privilege of playing any commecially-available recording they want, this was never an issue. But a license to broadcast music is quite different from a license to sell recordings of that music. And although the music itself might be in the public domain (Beethoven's been dead a long, long time), the recording isn't.

The record companies, being no fools (at least about money), are not about to sell cheap master licenses to TV networks and studios just for the latter's convenience. Hollywood producers will pay very big bucks for the rights to use a current or former top-40 record in a film, an effect which has trickled down throughout the industry, so that even the most modest of such licenses these days tend to be very expensive. So in most cases, going back to Sony, BMG, or EMI (who all operated under very different names in those days) for permission to use the originals is not an option. But since the film was cut to the music, how are you going to get a new soundtrack that fits the picture? Do you record the music all over again? You don't have to pay the composer, but you do have to hire a whole orchestra to make a new recording, and that would probably be way more expensive than getting the master rights!

There are a couple of solutions, and both of them happen to be good for the type of folks who read this magazine. One is to find other recordings of the same music and use them. There probably aren't any that are out of copyright (and if there were, the sound quality would be such that nobody would want to listen to them), but there well might be a good recording from a small label eager for exposure, recorded in the high-culture, low-budget salons and concert halls of the former Eastern Bloc, which the label would be delighted to lend in exchange for a reasonable fee and a credit at the end. Then, through the magic of digital hard-disk editing, you can change the tempos, add or delete passages and pauses, and otherwise customize the recordings so that their timings match the original ones closely enough to work with the picture. Fly the new track back in with the original narration and sync sound, and you're done. (If the network doesn't have the original narration and sound on separate reels, then you get the chance to re-record the track and do some creative sound design.) It's still going to cost them less than paying BMG, and if the contracts are set up right, when the network wants to re-release the series on DVD in five years, they won't have to negotiate the rights all over again.

The other solution is even simpler: re-record the track from scratch, using MIDI. Do you still need convincing that with the right gear in the right hands, astonishingly good music can be produced with MIDI, even classical music? If you don't believe that yet, go to your local music school and listen to some of the kids' composition and orchestration exercises that they're doing in the computer labs. Then hire one of those kids, or one of their teachers. They program, you mix. The talent is out there. Most of it is doing games, industrials, spots, techno, and cheapo horror flicks, but there are a lot of classically-trained musicians who would really shine given the opportunity to play orchestra conductor with their MIDI gear. And if they've been doing anything at all with video, they already know about synchronization, and how to make things fit.

Scenario number two: A software company is preparing to put out a series of computer games based on a blockbuster movie. Through various mergers, acquisitions, leveraged buyouts, and other scams that make America what it is today, the software company and the studio that owns the movie find themselves under the same corporate umbrella. Licensing the characters, the scripts, the visual backgrounds, even the voices of the characters (some supplied by the original actors, who haven't worked since themovie came out, amd some replaced by imitators) is a snap. What's missing? The music. The composer, no slouch in the "keeping what's mine" department, never granted any rights to the studio outside of film and video synchronization. He's not about to now, and he's way too busy (and too expensive) to devote time to writing new music for some silly game.

The software company puts out a call for anyone who can write, fast and cheap, in the composer's style. Since the composer himself, while brilliant, is highly derivative of other, well-known composers, it's not a hard assignment. Since there's little direct sync, the new composer can work without picture, just writing cues to overall timings. In fact, the company can hire several composers and mix and match their work as needed. The music needs to be recorded, digitized, and perhaps processed so that it sounds good at 22 kHz with 8-bit resolution -- all jobs for us audio guys.

Scenario number three, my personal favorite: A company gets the idea to build standalone "kiosks" for health and fitness facilities that will create personalized exercise videotapes for clients. With a computer, a huge hard disk filled with images, and a touchscreen, a trainer can select which exercises, how many of them, how fast to do them, how long to pause between sets, and even whether the images will be male or female. The computer spits out the images in real time and they're recorded on a built-in VHS deck. The tape pops out, and the client (or if it's a medical office, the client's insurance company) pays for it and takes it home. If the system needs to be updated or the repertoire expanded, the company puts the new software and images on a CD, and distributes it to all the facilities who bought the system. They then slide the disc into the unit's internal CD-ROM drive and follow the instructions. This is cool: a real-world, highly practical and helpful application of that nebulous thing called "multimedia".

That CD-ROM drive can, of course, be used for something else: audio. The video tapes, the company reasons quite correctly, will be a lot more appealing if there's a music track on them. So the salesmen out on the road pushing the concept are telling potential buyers they can put anything they want on the tapes: Steely Dan, Madonna, Pachelbel, Grand Funk Railroad, NWA, whatever. Until someone taps them on the shoulder and whispers "Copyright!"

There are four criteria generally recognized for evaluating "fair use" of a copyrighted work, and this scenario manages to flunk all of them. It's not derivative, it's not literary (like a review), it's not educational, and it's certainly not non-commercial. In fact, it's about as blatant a violation of copyright as you can imagine, and the company realized, about a month away from ship date, that they'd better do something about it or they were going to get nailed.

So they called me. My assignment, and I did choose to accept it, was to produce, in a week, some 35 minutes of original instrumental music encompassing styles from funk, to lite jazz, to new age, to rock and roll, all of which I kept on my Mac in a folder called "Music To Not Get Sued By". They paid me well, they were pleased with the results, I granted them unlimited use for their specific line of products and kept all other rights (hey, I may make an album from some of it some day), and we all went away happy. See why this was my favorite?

Probably the only thing that's safe to say about copyright law and practice five or ten years from now, is that it will be different. But hopefully, the need to produce new music and other audio material, and the ability to get paid for it, will remain as important as it is now. However things shake out, it's to our advantage to realize that sometimes there's much more to this copyright stuff than meets the eye, and if we're smart, we'll make it work for us.

Paul Lehrman is trying to figure out how he can claim trademark rights on the term "Fair Use"™.

These materials copyright ©1996 by Paul D. Lehrman and Intertec Publishing