Down By (Copyright) Law

September 29, 2008 7:59 PM

Why is Nina Paley depressed? Her debut feature film, Sita Sings the Blues — which she animated herself in Adobe Flash — screened to general acclaim at the Tribeca Film Festival in New York. It won the best feature-film award at this year’s Annecy International Animation Film Festival and best American feature at the Avignon Film Festival. Oh, wait, here’s the problem — she can’t find a distributor willing to take a chance on her unconventional, very personal film. (This is a bad year to be shopping an indie.) Because she doesn’t have “synch rights” to the compositions underlying the Annette Hanshaw songs that inspired the story — and now constitute its backbone — she can’t give the film away. Having invested so much in striking prints of the film for festivals and making screener DVDs for press, she’s too broke to pay the $220,000 it would take to clear the 11 songs for distribution. (Don’t miss the spreadsheet showing exactly how much the various players expect her to pay to clear each 80-year-old song.) And now she notes, with tongue maybe half in cheek, she may be on the hook for felony copyright infringement. Also, she’s newly homeless. What’s an indie animator to do? Previously discussed here and here.
posted by Joey Bagels (83 comments total)

Sure would be a shame if it leaked onto the internet...
posted by mullingitover at 8:09 PM on September 29, 2008 [1 favorite]

"Yeah, yeah, I knew this going in, but I expected a distributor to pay for some of it. These costs are a pittance by studio standards, nothing at all really, but I’m still an “indie,” and no matter how many awards Sita wins, no distributor is going to spend real money on her."
posted by smackfu at 8:11 PM on September 29, 2008

Seriously though, why not just find someone to front the licensing costs for the music (or buy equity in her studio), then sell the movie on the iTunes Store?
posted by mullingitover at 8:12 PM on September 29, 2008

Here's the trailer

I've done indie projects that despite being pretty good, have hit brick walls. The key is to not get so emotionally invested, that you can't move on to the next thing. I've found that sometimes your "labor of love" just ends up being a high priced portfolio item. The trick is to write the cost of the last gig into the price of the next gig.
posted by billyfleetwood at 8:14 PM on September 29, 2008 [1 favorite]

Holy cow, "$15K to $20K" for every song from all these different companies? Talk about price fixing.
posted by crapmatic at 8:16 PM on September 29, 2008

I'm so sorry to hear about all these troubles...I remember this project being talked about on the blue back in the day, and I wish it was screening anywhere remotely near me. If I weren't a broke grad student...

Thanks for the detailed FPP.
posted by Tesseractive at 8:21 PM on September 29, 2008

Can anyone explain what she means by the "rights to the compositions" underlying the performed music? Does this mean the music publishers own rights to the songs themselves, though the performances are public domain? When would those rights expire?
posted by Kraftmatic Adjustable Cheese at 8:24 PM on September 29, 2008

And really, I think she's being a little bit precious by not giving up on the contentious tracks and finding, or creating, new music. There must be hundreds of talented musicians available who would be eager to contribute to a project like this.
posted by Kraftmatic Adjustable Cheese at 8:30 PM on September 29, 2008 [5 favorites]

Man, I really hope that things work out for her. The bits of the film I have seen are amazing.
posted by pised at 8:34 PM on September 29, 2008

Bummer when your backup plan involves a yank on Cory Doctorow's heartstrings.
posted by felix betachat at 8:34 PM on September 29, 2008

I'd say more like a few musicians.

The artist should have made better music choices. Contact an indie band. Do new arrangements. Whatever.

The lesson here, I guess, is that our cultural heritage -- that is, the old crap you'd like to make art of, that comprises our shared cultural history -- it's not ours to use freely. That is a crying shame.

However, the rest of this story, frankly, seems like a lot of drama. Make a second film, with better licensing choices and the knowledge gained from the first. As a then-famous outstanding filmmaker, pay for the release of your baby.
posted by fake at 8:35 PM on September 29, 2008 [3 favorites]

And really, I think she's being a little bit precious by not giving up on the contentious tracks and finding, or creating, new music. There must be hundreds of talented musicians available who would be eager to contribute to a project like this.

The whole movie is basically the songs, though -- everything's synced to the songs, they drive the story. Changing the animation now would be like trying to take The Wizard of Oz as filmed, and composing new music to match the actors' mouths and movements.
posted by Greg Nog at 8:36 PM on September 29, 2008 [4 favorites]

Can anyone explain what she means by the "rights to the compositions" underlying the performed music?

I believe it is because songs have two copyrights: the copyright that belongs to the songwriter (composition) and the copyright of a particular recording. Confusingly, they can expire at different times. The easy example is a modern recording of an old song, let's say "When Johnny Comes Marching Home". The composition is in the public domain, the particular recording is under copyright.

The reverse would be a song in which the recording has fallen into the public domain, but the songwriter's copyright is still in force, which I believe to be the case here. The rights should expire whenever the composer's copyright does. Assuming these songs are Indian, Indian copyright states:

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication.

So a sound recording made 65 years ago would be public domain, but the underlying song composition would be under copyright until 60 years after the composer's death -- and he or she might even still be alive, so good luck waiting that one out.

As an aside, it is interesting to note (at least in the US) that when a song is played on TV or radio only the songwriter gets paid, not the recording artist!
posted by fings at 8:53 PM on September 29, 2008 [1 favorite]

this has happened before.
posted by tremspeed at 8:59 PM on September 29, 2008 [1 favorite]

I think the use of those specific recordings of those specific songs is creatively important here -- not just because the songs have a personal meaning to the filmmaker (she encountered them while she was sleeping on friends' couches after being dumped by her husband at the time, which was the impetus for her to tackle the project) but also because they have something to say about feminism -- hell, just about being a woman -- in different eras.

It's easy to say that she should change the music. But, you know, that would be a compromise. And I don't think her heart would be in it. Which is too bad. But it's an excellent film, and it's a shame to see it get tangled up in intractable rights issues that prevent the filmmaker from even handing it out for free via Bittorrent (because that's "distribution" of someone else's 80-year-old "IP").

I admit that I don't completely understand the copyright issues at play here. In her blog posts, Paley says that the recordings are in the public domain, but the publishing rights (known as "synch rights" in the biz) for the compositions are still protected. I poked around for a while and couldn't figure out how a song that was (obviously) recorded after it was written could fall out of copyright while the composition that predated it was still protected -- but I trust that Paley's correct that she has to clear them. It would be great, IMO, if someone here could prove her wrong. She's definitely been in touch with the rights holders, who believe that she owes them money.
posted by Joey Bagels at 9:03 PM on September 29, 2008

BTW, great looking trailer, and it looks likes the Fings family may get a chance to see the film in NYC in November. (Screening List to look for a showing near you.)
posted by fings at 9:04 PM on September 29, 2008

Satan is clearly behind this. I completely side with the filmmaker. She pursued her work with a single-minded passion which is what we want from artists. It's absurd that she should now be struggling to get that work to us.

I dream that in some saner, wiser future, it will be impossible for copyright holders to deny inclusion of their material in the works of others, or to demand extreme upfront payment of royalties. Rather, all payment will come from a negotiated share of the overall royalties.

And lions will lay down with lambs.
posted by philip-random at 9:25 PM on September 29, 2008 [1 favorite]

Whoops, missed the Annette Hanshaw link! (Hangs head in shame.) Right, American song recordings then.

To answer Joey Bagels's question, in the case of American song recording copyrights, the same thing can happen as my India post, just a bit differently because American copyright is kind of messy.

Stuff made before 1923 is in the public domain. Stuff made between 1923 and 1963, which was published without proper copyright notice, or was published with proper notice *but* not renewed 28 years after publishing, is in the public domain.

So it works like this: in 1929 Link/Waller/Rose write I've Got a Feeling I'm Falling. Annette Hanshaw records it, which is then published. Said song recording is not renewed, falls into the public domain. Link/Waller/Rose at some point sell the songwriting copyright to Warner Music. 28 years after it was written (1957), Warner renews the copyright for another 28 years. In the 1970s, Congress extends copyright, and then does it again in the 1990s, so now anything published after 1923 and was renewed is under copyright for 95 years. So right now, the songwriter copyright will expire in 2024, assuming copyright isn't extended again between now and then.

(See this chart for a more detailed explanation.)
posted by fings at 9:50 PM on September 29, 2008 [2 favorites]

Wow, I feel bad for her. I've been following Nina Paley since she did a comic called "Nina's Adventures in Santa Cruz" (I once had a piece of original art that, alas, got torn by a landlord) and I was really looking forward to seeing this film. I hope it works out for her one way or another.
posted by lore at 10:21 PM on September 29, 2008

The whole movie is basically the songs, though -- everything's synced to the songs, they drive the story

Yes.
posted by drjimmy11 at 10:53 PM on September 29, 2008

Thanks, fings. Nina's story is a beautiful example of just how broken US copyright is. It's a war on culture.
posted by sdodd at 11:22 PM on September 29, 2008 [1 favorite]

Damn. I've been eagerly awaiting this movie for so long. I was so excited to see that it was finally being screened, and winning awards left, right & centre, to boot.
posted by UbuRoivas at 11:43 PM on September 29, 2008

Would it be backwards to have a big screening party where everyone donates what they see fit (but over a certain amount, after all she needs to raise 220,000) to watch the film, and all that cash could go to clear the rights? Each person who attends said screening gets their name in the credits. She's already screened it at festivals, so she's already been infringing (as she points out about the DVD's)
It does seem as if this film has enough interest to actually pull that off.
posted by dabitch at 11:51 PM on September 29, 2008 [1 favorite]

Nina is definitely being hurt by two things that aren't her fault. The indie film market really is in a historic depression this year. And opportunistic conglomerates, or the great-great-grandchildren of artists for that matter, should not be compensated for work that they had nothing to do with producing. We all acknowledge that an artist should be able to profit from his or her work, and so should their children, and maybe even their grandchildren. But art is not real estate, and copyrights expire for a reason. The constant renewal that some of these companies (or estates, or heirs) get away with is cheating, pure and simple, and someone needs to have the guts to close the loopholes and put a stop to it.

However, Nina made an obvious and, frankly, stupid mistake when she chose to use those recordings as the basis for her film without first working out the clearances. That is producing 101, and she should have known better. I think she was probably banking on a distributor sorting it out on her behalf, but that is an awfully risky (and cocky) move - no one knows whether they will find a distributor at all when they set out to make an independent film, let alone a distributor who is prepared to pay tens of thousands of dollars for music that should have been cleared in advance. Her post-hoc political arguments are lame. Like I say above, maybe they are "stealing culture." But she knows the rules, and she chose to willfully ignore them. In these circumstances, there isn't a serious producer on earth who would feel bad for her.
posted by ivanosky at 12:14 AM on September 30, 2008 [3 favorites]

I'll never understand why so many talented and creative filmmakers use canned music. I mean, when you make a film you create the words, you direct the actors, you set up the shots, you set up the lights, you mix the sound, you process and alter the footage to achieve the effect, the mood, you may even pay someone to score it...but then you end up licensing some pre-existing music, presumably because it's "perfect" or "sets the right mood" etc.

It's not like you'd go out and pay some exorbitant fee to shoot in front of just the right decrepit building; there's lots around. And unlike buildings, it's relatively cheap to get a song written and recorded, there's tons of talent out there who can and will do it for practically nothing.

I should think filmmakers would be more positive about their own work; surely it wouldn't fail if they didn't use exactly the right song. There are exceptions, but really, were those the only 11 songs she could have possibly used? Aren't there 11 artists out there, desperate for attention and full of talent, who might have written similar songs gratis?
posted by davejay at 12:27 AM on September 30, 2008

sdodd: It's not just US copyright. The US recording industy is bedfellows with the US government, and the US government leans on other countries to tighten the screws on infringers and introduce tougher legislation. They've been trying to get to among others Sweden's The Pirate Bay and Norway's Jon Lech Johansen through local courts, and use trade ties with China to pressure them to enforce IP laws to a greater degree.

And BTW: It irks me that "copyright reform" always means "less rights for consumers".
posted by Harald74 at 12:27 AM on September 30, 2008

I've heard of alternate soundtracks working before - has she tried watching the video to the soundtrack of "Dark Side of the Moon?"
posted by Pronoiac at 1:05 AM on September 30, 2008

The whole movie is basically the songs, though -- everything's synced to the songs, they drive the story. Changing the animation now would be like trying to take The Wizard of Oz as filmed, and composing new music to match the actors' mouths and movements.

Piece of cake then, right?
posted by juv3nal at 1:06 AM on September 30, 2008

I am still waiting for my WKRP DVD boxset with the music.
posted by srboisvert at 1:51 AM on September 30, 2008 [1 favorite]

philip-random: I dream that in some saner, wiser future, it will be impossible for copyright holders to deny inclusion of their material in the works of others, or to demand extreme upfront payment of royalties.

While I agree with the sentiment, and look forward to a day when derivative isn't so bogged down by rights issues and copyright doesn't last effectively forever, there are certainly cases where this law makes sense. Would not Tom Waits, for example, no longer be able to deny the use of his songs to advertisers were what you suggest to occur? And what would that system do to the General Public License, which depends on copyright to prevent corporations from appropriating free software for their own proprietary ends?

It makes sense to allow copyright holders to control their work to an extent. They probably have too much control as it stands, but some control makes sense.
posted by JHarris at 2:26 AM on September 30, 2008

The more I follow the story of Nina Paley, the less I wish to follow the story of Nina Paley. Good issues, brought up by the entirely wrong person. Of course, as newcomers to the story of Nina Paley, have an awesome time discussing it.
posted by jscott at 3:20 AM on September 30, 2008

The right to record and play someone's music is one thing, but there is another restriction called synchronization rights, which is the right to combine it with a visual performance. The first is covered by a blanket system were any and all songs can be had for a fixed fee. The second is not, and deals must be struck for each song separately.
posted by StickyCarpet at 4:44 AM on September 30, 2008

Okay, yeah, bad idea. I'm on board with that. I don't think being creative precludes you from stopping and remembering that such things are under wraps, and if your camera just happens to skim past the arm of a child bearing a Mickey Mouse watch (visible only if you freeze-frame, blow it up, then apply the unreal "image enhancement" techniques of CSI and ilk), you must expect Disney lawyers to begin parachuting from the empty sky before the dailies dry. Making music is an art itself, and is therefore non-trivial, and, lacking a time machine, it's particularly difficult to make music which already has a cultural impact and has faded into the subconscious; this difficulty cannot be waved and breezed away unless one has a fan composed of Clevelands.

However, this is not a war on culture, but it is also not mere greed. Mere greed would be sticking one's hand out at every opportunity. This is greed as an industry, where the product is more greed. This is ... this is taking proceeds from previously sticking one's hand out, then purchasing votes in the regulatory system to extend the copyright length (more than once), then doing a Mafioso shakedown for sums which probably correspond to fair market value ... in Fairy Money Land. Lather, rinse, repeat. This is ... somewhere between Kafkaesque and Mephistophelean.
posted by adipocere at 4:49 AM on September 30, 2008 [1 favorite]

I should think filmmakers would be more positive about their own work; surely it wouldn't fail if they didn't use exactly the right song.

No no, that's what people are saying; this wil fail if she doesn't use these songs. The animation uses the songs as its starting point. Without these eighty-year-old songs, there is no movie. To get a sense of how the film works, check out this clip:

"Hanuman Finds Sita"
posted by Greg Nog at 5:16 AM on September 30, 2008 [1 favorite]

You telling me she can't raise $200K from people on the internet, with her profile?
posted by autodidact at 5:22 AM on September 30, 2008

^^ I'd send her $20.
posted by autodidact at 5:22 AM on September 30, 2008

I didn' trealise the Synchronisation Rights were in the Song and not the Recording. ie she can't just get someone to do cover versions of the Songs and use those.

Thats weird.
posted by mary8nne at 5:32 AM on September 30, 2008 [1 favorite]

None will accept a royalty based on the film’s revenues.

That's the only part that bothers me here. As others have noted, she was wrong to not get prior clearance for these songs before creating her film if she wanted to financially benefit from it. Which is an important consideration. If it was truly "all about the art", then who cares that she can't sell it on DVD? She should be happy just to have made what she considers a beautiful film. When she steps across that threshold and wants to make or recoup money with it, then it's no longer just art, and she has to put up with the rules.

That said, the rules themselves are terrible. I've had to deal with them myself and they're ridiculous in the extreme. Sure, "Silent Night" is in the public domain as a composition, but you've also got to check to ensure the arrangement you're using isn't still copyrighted, too (let alone the recording). I wish there were some sort of royalty system based on revenues; there are problems with that idea but it would allow a wider use of these songs.
posted by GhostintheMachine at 6:25 AM on September 30, 2008

Nina's 'don't breed comics' for VHMENT.
posted by eccnineten at 6:29 AM on September 30, 2008 [1 favorite]

And really, I think she's being a little bit precious by not giving up on the contentious tracks and finding, or creating, new music. There must be hundreds of talented musicians available who would be eager to contribute to a project like this.

Indie filmmakers shouldn't be expected to provide a full employment program for indie rock bands. Not every film needs a soundtrack like Garden State. Is it a "little bit precious" for Stanley Kubrick to insist that the Blue Danube is essential to a scene in 2001: A Space Odyssey? Or for Quentin Tarantino to insist that his use of "Stuck in the Middle with You" is essential to a scene in Reservoir Dogs? When you have animation that is based on painstakingly synching sound to image (look up the films of Norman McLaren on Video Google to see what I mean), you cannot just put in a new song without starting completely from scratch.

In addition, if you compare Nina Paley to underground filmmakers in the 1960s who often operated in a copyright netherworld by making quite liberal use of pop music on the irsoundtracks (filmmakers such as Kenneth Anger, Bruce Conner, and Stan Vanderbeek), Paley is barely pushing the envelope at all. She used recordings that are in the public domain, but the compositions are not. This is a situation that could easily trip up a non-lawyer. George Martin, the record producer for the Beatles, found himself in a similar situation when he included a snippet of Glenn Miller's "In the Mood" in the orchestration for the Beatles, All You Need Is Love. George Martin had used a melody that was in the public domain, but did not realize that the arrangement of the "In the Mood" melody was not. This is madness. We should not have a copyright regime that is so punitive that artists need to think like lawyers just to make new creative work.
posted by jonp72 at 7:29 AM on September 30, 2008 [3 favorites]

I am thrilled people are having this conversation here - thanks everyone.

To shed some light on why I used the songs I did, here's a little essay I wrote last night. Sorry it's kinda long:

'Why I can't "just swap out" the Annette Hanshaw songs in "Sita Sings the Blues":

The songs themselves inspired the film. There would be no film without those songs. Until I heard them, the Ramayana was just another ancient Indian epic to me. I was feebly connecting this ancient epic to my own experiences in 2002. But the Hanshaw songs were a revelation: Sita's story has been told a million times not just in India, not just through the Ramayana, but also through American Blues. Hers is a story so primal, so basic to human experience, it has been told by people who never heard of the Ramayana. The Hanshaw songs deal with exactly the same themes as the epic; but they emerged completely independent of it. Their sound is distinctively 1920's American, and therein lies their power: the listener/viewer knows I didn't make them up. They are authentic. They are historical evidence supporting the film's central point: the story of the Ramayana transcends time, place and culture.

What is this story? Sita is a goddess/princess/woman utterly devoted to her husband Rama, the god/prince/man. Sita's story moves from total enmeshment and romantic joy ("Here We Are," "What Wouldn't I Do For That Man") to hopeful longing separation ("Daddy Won't You Please Come Home") to reunion ("Who's That Knockin' At My Door") to romantic rejection ("Mean to Me") to reconciliation ("If You Want the Rainbow") to further rejection ("Moanin' Low," "Am I Blue") to hopeless longing ("Lover Come Back to Me,") back to love - this time self-love ("I've Got a Feelin' I'm Fallin'").

....[3 paragraphs excised for brevity]....

The synchronicity of the Hanshaw songs and Sita's story is uncanny. This impresses audiences and allows the film's point to be made: the story of the Ramayana transcends time, place and culture. Because the songs feature an authentic voice from the 1920's, they demonstrate that this story emerged organically in history. New songs commissioned by the director, while they might be entertaining, could not make that point. They would be a mere contrivance, whereas the authentic, historical songs give weight to the film's thesis. They are in fact the basis of the film's thesis, irrefutable evidence that certain stories - like the story of Sita and Rama - are inherent to human experience.'
posted by ninapaley at 8:07 AM on September 30, 2008 [17 favorites]

well, the film looks outstanding, and I can understand her position with regard to the music. More than that, I know how hard it is to find a good indie band who's willing to work with you on your budget, or even simply license to you on your budget.

her best solution right now, though it is by no means ideal, may just be to release it for no money in any form she can get, and move on. Word of mouth and grass roots support can work wonders. It sounds like she's really clinging to the dream of theater release, and that's just not gonna manifest right now. now more than ever people demand more conveniently delivered media (meaning, delivered to their tvs, computers, and dvrs.) and hold media they need to travel to go see to a much higher standard. this is not to say that her film wouldn't match that standard or surpass it, but rather that they won't be willing to find out without massive marketing investment, and quirky movies don't get massive marketing investments very often any more.
posted by shmegegge at 8:21 AM on September 30, 2008

Seconding Ivanosky with the idea that obtaining sync rights is right there in Producing 101. However, barn doors, horses, etc.

I just completed a sync rights deal for the smallest, most insignificant piece of music I recorded over a decade ago. But those rights do exist, and it is my choice to allow my music to be used in a movie project, not the filmmaker's.

Would it be less expensive to commission new recordings of those particular songs. For a much cheaper royalty rate, you can obtain permission to re-record songs, and if you get the right musicians and producer, those songs can be very close to the original recordings.

Or, as a totally off-the-wall idea, release the movie without a soundtrack, and post the soundtrack separately (and anonymously) as a torrent file. It's not YOUR fault if some unscrupulous members of the public reassemble those things in the privacy of their own home...

Option 1 could be a great solution. Option 2 is probably not very viable. But stranger things have happened...

Best of luck!
posted by Aquaman at 8:23 AM on September 30, 2008

Whoops, I see that Option 1 is not a desirable solution. Oh well.

I am sympathetic to the idea that no new music can have all of the weight of the originals, but good new recordings can definitely have some of that weight. Good new works are never a "mere contrivance".

Having made similarly painful substitutions in some of my works, my experience is that the oh-so-glaring difference between the piece you wanted and the piece you ended up with is not really so glaring to folks other than yourself.

That being said, your artistic vision is not someone else's artistic vision. I really hope you can get this dilemma resolved, for your sake and your project's sake, too.
posted by Aquaman at 8:29 AM on September 30, 2008 [1 favorite]

I should mention, the film does have contemporary music by brilliant independent musicians. In addition to the old Hanshaw songs, there are new pieces by Todd Michaelsen/My Pet Dragon; Nik Phelps and the Sprocket Ensemble; Rohan; MasalaDosa; and Rudresh Mahanthappa. Their music isn't a substitute for the old stuff, it acts as a complement and counterpoint. All the music was chosen to serve the story. I agree there's a wealth of talent out there, and I'm all about working with it whenever possible. But there is no substitute for history.
posted by ninapaley at 8:37 AM on September 30, 2008 [2 favorites]

Dammit, I really wanted to see this movie.

Now I have to wonder about bizarre substitutes; what if you convinced a singer/band that could sing in a similar style to Hernshaw's to perform along with the film, at screenings? Would synching fees apply then? Seems like it wouldn't...and would it allow you to raise money by showing the film in the meantime?

Bugger. What a revoltin' development.
posted by emjaybee at 9:14 AM on September 30, 2008

Um yeah that looks just like her.
posted by Zambrano at 9:18 AM on September 30, 2008

If it was truly "all about the art", then who cares that she can't sell it on DVD? She should be happy just to have made what she considers a beautiful film. When she steps across that threshold and wants to make or recoup money with it, then it's no longer just art, and she has to put up with the rules.

That said, the rules themselves are terrible. I've had to deal with them myself and they're ridiculous in the extreme.

This is pretty skewed logic. First, she's guilty of transgressing the rules. Then the rules themselves are terrible, ridiculous, extreme. This is exactly why Nina Paley had to break them. As for her daring to try to make money from her efforts, how else is she supposed to survive? You don't create work with the depth of hers by spending the odd weekend at it.

Someone nailed it earlier: this is bad law at war with culture. It must be confronted.
posted by philip-random at 9:21 AM on September 30, 2008

Not skewed at all, philip-random. She had two choices: play by the Byzantine rules in order to release the film on DVD, or ignore the rules and simply create a beautiful piece of art. Instead, she tried for door #3, creating the art first then trying to backdoor Byzantium, and now she's upset that it's not easy.

This is not bad law at war with culture at all. That's a foolish assertion. She didn't have to choose these recordings. Or if she absolutely required these and only these recordings, she could have either made the project just for herself (to satisfy her artistic needs) or followed through on the correct procedures like every other producer and obtain the rights first (to satisfy her economic needs).

This is exactly why Nina Paley had to break them.

This implies that she created this film as a protest against the rules, which I've heard nobody suggest. If she's all about breaking these arcane rules, then why is she trying to get the rights? This is no anti-perpetual-copyright protest, it's someone looking for a free pass out of a screw-up of her own making. The only thing she needs to confront is her own inability to secure rights before beginning production. If you want to be compensated by the system, you need to play by the system's rules or suffer the consequences.

If she wants to move ahead with this film, she either needs a creative way to get the money she needs, or a creative way to get around the rules. Perhaps she can work on getting a conditional distribution deal, whereby the distributor guarantees distribution if publishing rights are obtained, which might satisfy the publishers enough to get her a rights deal.
posted by GhostintheMachine at 9:54 AM on September 30, 2008 [3 favorites]

Aquaman writes "I just completed a sync rights deal for the smallest, most insignificant piece of music I recorded over a decade ago. But those rights do exist, and it is my choice to allow my music to be used in a movie project, not the filmmaker's."

Only if it's used like this, in synchronization. If it's part of the soundtrack, then, no, all you need is the cash to buy the rights.
posted by krinklyfig at 10:16 AM on September 30, 2008

She didn't have to choose these recordings. Or if she absolutely required these and only these recordings, she could have either made the project just for herself (to satisfy her artistic needs) or followed through on the correct procedures like every other producer and obtain the rights first (to satisfy her economic needs).

You think there's a flaw in my logic. Fair enough. I think there's one in yours. Simply put, you're assuming that artists are capable of thinking like bureaucrats (ie: I better get all my legal and procedural ducks in a row before I allow myself to be creative). Some artists can obviously think and work this way, and they tend to be the successful ones ... but man, we lose a lot of relevant, beautiful, essential culture when we shut down those who don't or can't.

Copyright law as we know it is a Gordian Knot that frustrates, confuses and outright kills way too much essential communication. It will be cut.
posted by philip-random at 10:36 AM on September 30, 2008 [1 favorite]

"? This is no anti-perpetual-copyright protest, it's someone looking for a free pass out of a screw-up of her own making. The only thing she needs to confront is her own inability to secure rights before beginning production. If you want to be compensated by the system, you need to play by the system's rules or suffer the consequences."

Are we richer for having these 80-year-old compositions protected or are we richer for having this new art that makes use of them without permission? I'd argue for the latter. I'd also argue against your acceptance of the laws of copyright as immutable and seemingly ordained from above. Cases like this are exactly why this is bad law—copyright is granted by the state in order to promote creativity, not stifle it.
posted by klangklangston at 10:55 AM on September 30, 2008 [3 favorites]

Damn, this whole situation sucks. Sita Sings the Blues is brilliant and should be seen far and wide. I hope this can be resolved, somehow.

Welcome to MeFi, Nina.
posted by homunculus at 10:58 AM on September 30, 2008

Using copywritten music without permission is not an interesting or useful transgression of the 'unfair' rules. It's either careless (if she didn't do her homework) or obnoxious (if she simply assumed her work would be so spectacularly valuable that it would pay for itself). Everyone dreams of setting a scene to their favorite tune. Serious people either do the extremely hard work of getting that tune cleared and paid for, by contacting the rights holder and raising money, or the equally hard work of finding an appropriate composer and then adjusting their expectations accordingly. I'm not saying that Nina should replace the current soundtrack with something else at the same bpm. If you watch those clips, you can see it's impossible. And the work is brilliant. I'm saying that she knew, or should have known, that this was going to be an issue before she set out to painstakingly synch her feature to someone else's music. And so whining about it now (and I'm not trying to sound insensitive but that's exactly what she's doing) should not garner much sympathy, at least not from people who understand how this process should work. For what it's worth, I think she should raise as much money as she can to clear the music, and then bring someone in, perhaps a music supervisor or, even better, a significant producer or music exec at UMG, and have them negotiate a deal that fits whatever she has raised. Rightsholders can be very flexible, especially if they realize it's a choice between something and nothing. In the meantime, quit the bellyachin'. I mean, what would Sita do?
posted by ivanosky at 11:09 AM on September 30, 2008 [1 favorite]

Rightsholders can be very flexible, especially if they realize it's a choice between something and nothing.

I agree with Ivanosky completely. There are tons of films out there where copyright holders have agreed to extremely minimal fees for song uses; see The Wrecking Crew documentary, for one.

And btw, Nina is already in violation of copyright laws here. She's shown this film at a number of festivals and not paid for the festival rights yet (I know because I'm one of the jerks on her list of jerks).
posted by queensissy at 11:29 AM on September 30, 2008

...but man, we lose a lot of relevant, beautiful, essential culture when we shut down those who don't or can't.

Considering this film has been made and seen, I'd say the only thing that's been lost has been her ability to make money off the DVD sales, since I think she's saying she's already paid the "festival" fee.
on preview, maybe not...

I'd also argue against your acceptance of the laws of copyright as immutable and seemingly ordained from above.

That's stretching things a bit far, klangklangston, since I specifically called them ridiculous upthread. Copyright is a good thing - it will certainly benefit this filmmaker should she ever get the rights to sell DVDs of her film, for example, preventing someone like me from just duplicating her film and selling it myself. But I agree the specific copyright rules in place in the US (and therefore practically in Canada as well) are excessive, meant more to protect corporations instead of creatives, and I wish they were changed in order to do what they're supposed to do - enable artists to earn a living off their work.
posted by GhostintheMachine at 11:37 AM on September 30, 2008

Serious people either do the extremely hard work of getting that tune cleared and paid for, by contacting the rights holder and raising money, or the equally hard work of finding an appropriate composer and then adjusting their expectations accordingly.

So only serious people are allowed to make a living off their art? That's boring. A lot of the arguments against Ms Paley seem to question her lack of professionalism and as such, they're good arguments. Except they end up shrugging off too much valid, important work, which I'm sorry, is just wrong.

I'm not entirely against the notion of copyright. I've profited a bit from it myself. I am against pretty much anything stifles creativity and our current copyright laws (USA, Canada, pretty much anywhere where lawyers have been allowed to propagate) stifle creativity.
posted by philip-random at 11:54 AM on September 30, 2008

(I know because I'm one of the jerks on her list of jerks).

Which list of jerks?
posted by Greg Nog at 12:11 PM on September 30, 2008

So only serious people are allowed to make a living off their art?

If you're serious about making a living at it, yes. Artists aren't exempt from this. If you want to make a living off a job at McDonald's, you'd better be serious about it. If you just want to do a half-assed job, you'll get a few paycheques, but the number of shifts you get will shrink and eventually you'll be let go. Artists don't get a free pass (and I'm speaking as a fellow artist here).

If you want to make art, you don't need to follow any rules to do so. You want to earn a living off your art, you'd damned well better be serious about it. Not only to ensure you're following all the rules in order to make your art, but also to protect your art and ensure everyone else out there is following the rules, too.
posted by GhostintheMachine at 12:43 PM on September 30, 2008

New songs commissioned by the director, while they might be entertaining, could not make that point. They would be a mere contrivance, whereas the authentic, historical songs give weight to the film's thesis.

These high artistic ideals are admirable and everything, but they do nil to get the production distributed and in front of a wider audience. You've already made compromises in the making of the movie -- using Adobe Flash could not have been her your top choice in animating software -- now it's time to make some more. Kubrick notwithstanding, very rarely does a director get exactly what he wants all the time. I think you could find a musician who could create bespoke tracks close enough in style and message to the originals that most viewers would never suspect that method wasn't your first choice.
posted by Kraftmatic Adjustable Cheese at 3:27 PM on September 30, 2008

Ok, so she sent DVD screeners out to festivals etc. And it isn't on any BitTorrent sites yet.

...

Perhaps it just isn't a good movie?
posted by finite at 5:36 PM on September 30, 2008

I'm sorry that sounded as harsh as it did; I certainly do sympathize with the artist's copyplight and hope she finds a way to release her work.

But really, what is standing in the way of a it being on TPB?
posted by finite at 5:47 PM on September 30, 2008

Actually, why not just release the movie without the songs that are financially problematic... but with instructions or the audio equivalent of subtitle files that will then play those songs using the correct audio tracks, which would cost maybe $15 at iTunes? Her work then becomes a piece of cinema that is silent at parts, but much like the Dark Side of the Rainbow there is the ability to synch at home the audio to have a different effect. While I appreciate the theory of synch rights- Led Zeppelin gets to choose which companies can play their songs during their ads- surely you don't have to pay synchronization rights if you're doing it privately, at home, and for no profit.

Unless you lawyer types are going to tell me that even telling someone "You should play this song at this time while watching this movie" is somehow a violation of copyright law or the DMCA, in which case we might as well skip ahead to the "nuke Washington from orbit, it's the only way to be sure" phase...
posted by hincandenza at 6:15 PM on September 30, 2008 [1 favorite]

Or better, if the song recordings are in the public domain, simply include a companion CD with the movie that has the songs already occurring at the right time, with conspicuous silent tracks in between. It's up to the viewer at home to pop in the CD and have it play at the right time (or rip it and layer it into a re-encoded movie file), although this still wouldn't clear the movie to be watched in public in this manner.
posted by hincandenza at 6:17 PM on September 30, 2008

Great minds think alike:
http://blog.ninapaley.com/2008/09/05/the-bright-side-of-the-dark-side-of-the-rainbow/
(posted Sept. 5) and
http://www.insyncherator.com/
posted by ninapaley at 7:08 PM on September 30, 2008

Personally, I'm glad she didn't try to figure out the legal issues before she made the film; it seems likely, considering how inane and depressing the rights issues are, that she'd have gotten discouraged and put off the project. Instead she took the idea and ran with it, and (from what bits and pieces I've been able to see) did something really incredible.

And I'm seriously sorry that I might never get a chance to see it in its entirety.

Nina, I hope you can find a way to get this out there so that people like me, who can't make it to a film festival showing, can watch it.
posted by bookish at 8:06 PM on September 30, 2008 [1 favorite]

I don't have a "list of jerks" (what an odd comment) but I can write a mean blog post.
posted by ninapaley at 7:35 AM on October 1, 2008

Whoops, shit just got Rosa Park'd!
posted by Greg Nog at 8:28 AM on October 1, 2008

Heh. Except I am a woman (if that matters to Sarah Vowell, who I adore) and, much more importantly, Freedom of Speech is a Civil Right.
posted by ninapaley at 9:01 AM on October 1, 2008

Wow, I really really really want to see this film. It looks beautiful.

I hope you get it worked out Ms Paley - me and my nine year old daughter loved the crappy-res Youtube shorts from it.
posted by Pericles at 9:19 AM on October 1, 2008

How exactly is your freedom of speech being curtailed here? I mean, I see how your freedom to make money off the musical performances of others is being hampered, but considering you got this film made and shown before several audiences with nary a truncheon-wielding government brownshirt in sight, I'd say you had full freedom to speak.

And Rosa Parks paid her bus fare before she took her seat.
posted by GhostintheMachine at 9:24 AM on October 1, 2008 [1 favorite]

But really, what is standing in the way of a it being on TPB?

Information might want to be free but Nina wants to get paid.
posted by PeterMcDermott at 10:17 AM on October 1, 2008 [1 favorite]

How exactly is your freedom of speech being curtailed here?

Her audience is being extremely limited, particularly her paying audience which will affect her ability to pursue future projects.
posted by philip-random at 10:46 AM on October 1, 2008

Granted, but how is her freedom of speech being curtailed?
posted by GhostintheMachine at 11:06 AM on October 1, 2008

ninapaley: Great minds think alike: blog link (posted Sept. 5)...

I was mostly riffing off Greg Nog's comment. Reading that post, I think VLC can play different audio to a given video.

Do synch rights ever fall into the public domain? Is it like that worldwide?
posted by Pronoiac at 11:36 AM on October 1, 2008

Do synch rights ever fall into the public domain? Is it like that worldwide?

Songs held in other countries are subject to their own countries' copyright laws, which tend not to be as draconian as the US's. Also somewhere I read that synch licenses are only demanded by rights-holders in the US and the UK; songs owned elsewhere aren't subject to synch rights (I could be wrong though!). A friend was able to cheaply and easily license a bunch of songs from India; he offered money mainly as a courtesy, because regardless of Indian law, the custom is to ignore intellectual property in the film business there.

Information might want to be free but Nina wants to get paid.

That is quite wrong. I wanted to give my film away for free but learned it was illegal for me to do so. If it were legal, believe me, it would have been available as a free download months ago. I would love to give it away and just accept donations to start paying back the massive personal debt this project has gotten me in. Instead, the film is hanging around my neck like an expensive albatross, costing more every day (instead of spending $9,000 on DVDs, for example, I would have preferred festivals simply download the screener; but prohibited from putting it online, I instead had to make and manage this @#!*%! pile of plastic.)

For the record, it is likely I will work out some kind of deal with the corporations. That doesn't make the laws any more moral or just to me. Even if/when I get through this morass, it isn't right that growing numbers of other poor independent filmmakers will continue to be muzzled by bad laws.
posted by ninapaley at 12:04 PM on October 1, 2008

Well, look...there's a ton of us, just on MeFi (and I'm sure around the world) that want to see this film released. What about if we started a Free Sita fund, and everyone who wants to see the film donate X amount, where X is what you can/want to give.

Nina could even set up stuff like PBS does for their pledge drives - $20 gets you a DVD, $50 gets you a signed DVD, 20k gets you producer credit, $200k gets you the eternal gratitude of an artist and her fans, that sort of thing. A lot of folks live where they never get to see indie films, and perhaps the Free Sita fund could not only get the film ransomed from the corporate whores, but could give the film more exposure and get it out to more people.

If something like that is legal, and I don't see why it wouldn't be if she's not releasing the film until the ransom has been paid, then surely the art aficionados on the intarweb can raise 200k in a relatively short amount of time. (Color me in for a donation if that idea gains traction.)
posted by dejah420 at 1:31 PM on October 1, 2008

What about if we started a Free Sita fund

We could free Sita, but then we'd have to subject the original print to a trial by fire, to verify that it's actually what it claims to be.
posted by UbuRoivas at 2:05 PM on October 1, 2008 [1 favorite]

Nina could even set up stuff like PBS does for their pledge drives

As long as there's not pledge drive interruptions.
posted by philip-random at 2:31 PM on October 1, 2008

I'd donate, for a DVD, sure.
posted by Pericles at 2:40 PM on October 1, 2008

Speaking of PBS, they pay into a special fund that allows them to broadcast anything without having to clear synch rights. So "Sita" can be legally broadcast on PBS, which is not outside the realm of possibility. We're working on it, anyway.
posted by ninapaley at 2:59 PM on October 1, 2008 [2 favorites]

I'm hoping the PBS option would allow non-USians to view it. Specifically, Australians.
posted by UbuRoivas at 4:20 PM on October 1, 2008

Caught a screening of Sita Sings the Blues last night. It's great.
posted by mr_roboto at 4:37 PM on October 14, 2008