Hi Denver,
>> For your particular situation, though, I feel you're in the right.
>> This is because of retroactive copyright term extension. At the time
>> the compositions used in your film were made, they were scheduled to
>> be released into the public domain before 2008. Thus, the author
>> would have assumed that you would be able to use the songs in a 2008
>> film without issue. However, the Copyright Term Extension Act
>> changed
>> that, violating the rights of creators (such as filmmakers) to be
>> able
>> to use works scheduled to go into the public domain.
Yep, that's why "Sita Sings the Blues" is such a good poster child,
and why I feel morally entitled to use those songs. I don't think old
works that should have entered the Public Domain by 1985, are
comparable to works living artists made last week. My sense of
entitlement is informed.
I agree with most of what you wrote below. Yes we need to change the
future copyright landscape. But we also need access to our cultural
heritage, right now. How many projects are dying right now because of
synch licensing? Artists shouldn't be as patient as you. While
reforming the system for the future, we should also do what we can to
access works from the past. Multiple plans of attack are good. I
suggest Insyncherator not as a substitute for changing Congress,
supporting Creative Commons, shortening copyright terms, etc. I
suggest it in addition to these activities.
The downside of Insyncherator is the publishers would still get money
from me. So I'd be channeling money toward them, which I morally
abhor. To me, that's the biggest argument against releasing "The
Sounds of Sita Sings the Blues."
The upside of Insyncherator is: the project could raise awareness
about Free Culture and what's wrong with copyright; more people would
be exposed to "Sita Sings the Blues"; other low-budget films could
follow this route instead of being killed in infancy or rotting on the
vine; maybe I could even make some money; and more I can't articulate
right now.
Short term work-arounds AND long term solutions are needed.
> You began creating the
> film after your research suggested the songs were in the public
> domain. Only once the film had been created did you learn of the
> copyrighted composition snag. So I don't think you felt you had the
> right to use an old, copyrighted song initially.
I knew compositions had to be cleared as well as performances ("master
rights") but I focused much more on the latter, naively failing to
imagine synch rights would be such an obstacle. However, looking back,
even if I had known, I would have made the film anyway. I feel just as
entitled in hindsight.
--Nina
On Sep 7, 2008, at 5:22 PM, Denver Gingerich wrote:
> On Sun, Sep 7, 2008 at 1:47 PM, Nina Paley <[EMAIL PROTECTED]> wrote:
>>> I'm sure the recording companies would find
>>> some way to put a stop to the legal distribution of your film if you
>>> used the insyncherator method. Perhaps they wouldn't do it for your
>>> particular film, but if it became popular enough with filmmakers and
>>> the recording companies were not earning as much as they would from
>>> selling synch rights, they would probably try something. While
>>> courts
>>> often make good decisions, they can also be blind-sided by big
>>> companies that twist the law to their advantage (MDY v Blizzard is a
>>> good example [4]).
>>
>> Maybe so. It would be a very worthy fight. And it could get lots of
>> mileage
>> long before such a fight began. But don't be so sure this would end
>> up in
>> court at all.
>
> It would depend on how much money the recording companies felt they
> were losing. And probably some other factors. Were you thinking of
> any factors in particular?
>
> I guess I'm too used to making sure everything I do is, as far as I
> know, legal. But being conservative is no way to produce new and
> interesting case law :).
>
>>> The real solution here is to tell the unreasonable recording
>>> companies
>>> to get lost and go to Jamendo or other sources of libre music if you
>>> need something for a film.
>>
>> What if you need 1920's Annette Hanshaw recordings for a film? All
>> music
>> isn't interchangeable, you know. As I wrote* at
>> http://blog.ninapaley.com/2008/08/26/music-industry-on-culture-killing-spree/
>> :
>> "...To the well-meaning ignoramuses who keep sending me helpful
>> emails
>> telling me to "just swap out the music": shame on you. I know you
>> mean well,
>> but you should actually watch the movie before telling an artist to
>> destroy
>> a work of art in order to satisfy extortionists. Your advice only
>> confirms
>> the artistic and moral bankruptcy of the movie business. Beyond
>> that, the
>> authentic songs from the 20's make a point inherent to the film,
>> which fakes
>> inherently cannot make - possibly there's a Fair Use argument
>> there. But my
>> first point is more important."
>
> Your point is well-taken. I realize that a particular argument may be
> best-made with a particular song.
>
> I'm not sure I agree with the sense of entitlement that seems to be
> present in this kind of an argument. Just because a particular song
> would help make a filmmaker's point does not mean that the filmmaker
> is allowed to use the song at a price the filmmaker believes to be
> reasonable. Transactions should take place only when both the buyer
> and the seller feel the price is reasonable.
>
> For your particular situation, though, I feel you're in the right.
> This is because of retroactive copyright term extension. At the time
> the compositions used in your film were made, they were scheduled to
> be released into the public domain before 2008. Thus, the author
> would have assumed that you would be able to use the songs in a 2008
> film without issue. However, the Copyright Term Extension Act changed
> that, violating the rights of creators (such as filmmakers) to be able
> to use works scheduled to go into the public domain.
>
> I believe your situation is somewhat unique: You began creating the
> film after your research suggested the songs were in the public
> domain. Only once the film had been created did you learn of the
> copyrighted composition snag. So I don't think you felt you had the
> right to use an old, copyrighted song initially. But perhaps since
> you got bit by a technicality, your views have changed. Don't
> hesitate to correct me if I'm wrong here.
>
> I think there are severals reasons you feel recording companies are
> extortionists (again, feel free to correct me):
> 1. The retroactive copyright term extension I mentioned earlier, which
> they heavily lobbied Congress for.
> 2. The conditions under which recording companies sign artists,
> usually explaining little about what the artists are signing away.
> 3. The government-granted right to restrict usage of songs to whoever
> they feel like. You would prefer a compulsory license on
> synchronization as is done with mechanical licenses.
> 4. The government-defined length of current copyrights, which I
> suspect you feel is unfair.
>
> I am hoping that #1 won't cause us problems anymore. My reasons for
> optimism here lie mainly with the solid argument against retroactive
> copyright term extension: it cannot possibly affect the incentive of
> the artist that originally created the works whose copyright is being
> extended to create them (since it is being extended now and not before
> they wrote the works). I am also hoping that Lessig's Change Congress
> movement (http://change-congress.org/) will be effective in reducing
> corruption in Congress.
>
> #2 can be solved by cutting out the recording companies and using new
> distribution methods such as those pioneered by Jamendo and other
> sites.
>
> I'm not sure about #3; in general I don't like messing with the free
> market (which is what compulsory licenses do). But presumably they
> compulsory licenses are supposed to correct a market failure.
>
> #4 should be where we put some serious effort. Many people have
> suggested that a suitable copyright term would be around 10 years and
> I agree. Such people include Cory Doctorow (see "What's the point of
> copyright?"; can't find an MP3 link right now) and Richard Stallman
> (see http://mirror.csclub.uwaterloo.ca/csclub/rms-talk.ogg). You
> might think that's expected of Stallman, but it's important to
> remember that the share-alike part of copyleft depends on copyright.
>
> Fixing the copyright term is especially important because more and
> more works will get encumbered by long copyright terms the longer we
> wait to fix it. We can't just reduce the copyright term on existing
> works because that would be infringing on the rights of the creators
> in the same way that retroactive copyright term extension infringes on
> the rights of the public. So the sooner we can get a shorter
> copyright term on new works, the better.
>
> If you want the right to use any work without the author's permission
> (which is what compulsory licenses are), then perhaps abolishing
> copyright is the right route to take. Copyright becomes too
> complicated when there are certain things that are covered by
> compulsory licenses and others that aren't. It is simpler just to get
> rid of copyright altogether. That's obviously a little more extreme
> than reducing copyright to 10 years (which, though it shouldn't be, is
> already pretty extreme given the circumstances).
>
> These ideas are based on changing the future copyright landscape
> (perhaps many years from now) so they may not appeal as much to you
> since they don't deal with the immediate issues with your film. But
> this is really where we need to be working so that things don't suck
> as much for filmmakers and others in the future.
>
> I think it is partly because my thinking is long-term that you take
> issue with my suggestion that you should find different songs.
> Eventually all of the songs you need will be in the public domain. If
> we can encourage artists to use libre licenses on their works while
> waiting for existing "all rights reserved" works to become public
> domain, then we will eventually have a society where mixing content
> and culture is the norm and isn't impeded by these silly problems
> you're running into.
>
>> *Please don't take my hostile tone personally, this was written
>> towards
>> industry apologists, not you!
>
> Don't worry; I didn't find the comment offensive. It is a heartfelt
> reaction to the injustices you're encountering.
>
> Denver
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