Amazing Grace, Unprecedented Court Action
September 16, 2015 1:22 AM   Subscribe

 


So, at its heart, it's a matter of licensing and right of publicity. Apparently, when they did the film, they never signed Franklin to a release for the film, because she was under a contract with her label that gave those rights to her label. Elliott's argument is that when he bought the negative, those rights attached to it, meaning that he's in the clear. I would imagine that Franklin's position was that she only granted those rights to Warner, meaning that if Elliott wants to use her likeness in the movie now that its his, he's going to have to negotiate with her directly for authorization.

It bothers me that (like always) we're seeing aspersions of greed being cast against the artist for protecting their own interests.
posted by NoxAeternum at 2:43 AM on September 16, 2015 [10 favorites]


Especially because you have to read pretty far down the article to even find out why Franklin is suing.
posted by Elementary Penguin at 2:53 AM on September 16, 2015 [2 favorites]


I tried to be pretty neutral about my write-up, and I tried to choose the articles that were the most neutral about her actions. One quote (I hope it is from an article I included in my links) was something about "when movies are released there are often a lot of issues like this that arise, and I'm confident they can be resolved" or something.

I personally think 1) this movie needs to be released, 2) box office will be pretty good after all this fuss, 3) Franklin should be given something fair, and 4) Franklin should be fair about what she's willing to get.

This kind of movie, in the theater, is right up my alley. I'm rooting for Franklin to find happy terms for its release.
posted by hippybear at 2:55 AM on September 16, 2015 [2 favorites]


aspersions of greed

"Pay me my profits" isn't greed, it's respect.
posted by three blind mice at 3:07 AM on September 16, 2015 [5 favorites]


It bothers me that (like always) we're seeing aspersions of greed being cast against the artist for protecting their own interests.

I believe the general frustration here is that people just want to see the thing. The intention of licensing was to provide a good for market, not to create a thing and then withhold it. (Of course, the combination of lawyers + $$$ has changed that relationship quite a bit.)

She already agreed to the documentary being created, and she's had what, 43 years to negotiate the licensing for it. All of it happening like this just makes it feel like she's trying to hide something, or rewrite history to match a PR scheme. Which is sorta the antithesis of documentaries.

So while it's just my opinion... the way this has been handled just smells of money grabbing.
posted by Blue_Villain at 3:14 AM on September 16, 2015 [1 favorite]


Well for most of those 43 years it was unreleasable so she probably didn't think about it.
posted by Elementary Penguin at 3:21 AM on September 16, 2015 [6 favorites]


She already agreed to the documentary being created,

Only in a very rough, technical sense, which is sort of the issue at play. Her "agreement" is based heavily on the label having control of her likeness, so they didn't see a need to get an explicit authorization for her likeness in this work.

and she's had what, 43 years to negotiate the licensing for it.

For most of those years, it was believed that a technical issue killed the project. It was only recently that those hurdles were overcome, and the film was able to be restored. So no, there hasn't been 43 years to negotiate.

All of it happening like this just makes it feel like she's trying to hide something, or rewrite history to match a PR scheme.

This is the mentality that really bothers me. Because the sense I get is that she would like them to just negotiate with her honestly, instead of finding some sort of legal loophole that says they can use her (and lets be honest - Franklin is THE reason people are interested in this film in the first place) without getting her explicit permission. I'm tired of how any time artists stand up for themselves, they get accused of being greedy.
posted by NoxAeternum at 3:26 AM on September 16, 2015 [22 favorites]


"Pay me my profits" isn't greed, it's respect.

I see what you did there.
posted by Optamystic at 4:10 AM on September 16, 2015 [15 favorites]


But hold on! Literally moments before it was due to make its world premiere at Telluride, Franklin got an unprecedented court injunction to stop the movie from being shown.

What is it about the injunction that's unprecedented?
posted by PeterMcDermott at 4:14 AM on September 16, 2015 [4 favorites]


There's a lot of misunderstanding around these issues. This isn't about her copyright or intellectual property, and I predict that this film comes out and that she loses her legal challenge in the end (although some settlement is likely). I even wonder if her legal representation are being up front with her about her actual position, or just banking fees off of her.

She isn't owed profits on this film, no subject of a documentary is. She is owed profits on her music. The concept of "right of publicity" is stretched here.

Most of us prefer to automatically side with the artist, and when its an artist as truly awesome as Aretha that is hard to resist.

The legal issues are around the transfer of her release, which she did provide in 1969 to the original production, with the ownership of the negatives. The terms of that contract and the sale need to be assessed via a legal process.


What is it about the injunction that's unprecedented?

Prior restraint of speech, rather than allowing things to progress and possibly award damages if it is found later that Aretha's interests were harmed. Injunctions against books/films are rare and usually only involve personal safety issues.
posted by C.A.S. at 4:22 AM on September 16, 2015 [9 favorites]


If it was going to be shown at a modern festival, there's already a digital "master" out there somewhere. that was going to just get played on a laser projector off a hard drive.

Which is to say, i really hope someone involved in the restoration project that's pissed off, or at one of the festivals, or some courier or something just posts this on the pirate bay.

Because... seriously?

It's impossible to call this a great injustice like what's happened to Eyes on the Prize, but it's pretty damn dumb after >40 years. If copyright hadn't been fucked up, this shit should be public domain at this point.
posted by emptythought at 4:31 AM on September 16, 2015 [1 favorite]


Emptythought, it's got a terabyte bounty on it at PTP.
posted by ryanrs at 5:32 AM on September 16, 2015 [7 favorites]


Emptythought, it's got a terabyte bounty on it at PTP.

Christ, that's the most cyberpunk thing I'll read all day, even if I go to the library and check out Neuromancer.
posted by thecaddy at 6:13 AM on September 16, 2015 [26 favorites]


What does it mean to have a terabyte bounty?
posted by girlmightlive at 6:19 AM on September 16, 2015 [3 favorites]


If copyright hadn't been fucked up, this shit should be public domain at this point.

At least for musical works, unreleased material becomes public domain after 50 years (or 70 years, more recently), in Europe. (Thus the recent releases of copyright-preservation boxed sets or retrospective series of live sets, outtakes and bootlegs from artists like Dylan, Neil Young, etc.) Not sure if that applies to film, or if Franklin's claims extend beyond the musical performances. Or, for that matter, if Franklin's rights (or Atlantic/Rhino's rights) to the underlying compositions would prevent these unreleased live performances from becoming public domain.
posted by snuffleupagus at 6:33 AM on September 16, 2015


On private BitTorrent trackers users are generally required to upload some fraction of the number of bytes they download. Users who post specifically requested material receive upload credits as bounty from requestors.
posted by save alive nothing that breatheth at 6:35 AM on September 16, 2015 [6 favorites]


I guess now is a good time as ever to say that I find the word "bounty" hilarious.
posted by bitteroldman at 6:36 AM on September 16, 2015


girlmightlive, private torrent trackers keep very close tabs on the ratio between data uploaded and data downloaded. And, because a good ratio is necessary to continue using the site, and it can be difficult to have a good ratio by only uploading what one's downloaded, data becomes a kind of currency, almost - users can pay data to make bounties on things they want. If I have lots of uploaded data, I can give a gigabyte of it to make a reward for, whatever, a rare vinyl Chilean pressing of the white album. Or for this film. If someone finds and uploads it, they get the reward. Very difficult things to find can have huge bounties. A pressing of the golden record sent into space the voyager spacecraft has an insanely high bounty on what.cd, for example.
posted by Rinku at 6:38 AM on September 16, 2015 [7 favorites]


Not sure if that applies to film, or if Franklin's claims extend beyond the musical performances.

Apparently I'm half awake, as on a second read it's pretty clear that Franklin is also asserting the right of publicity (name and likeness, etc).
posted by snuffleupagus at 6:48 AM on September 16, 2015 [2 favorites]


Interesting, thanks for the explanation.
posted by girlmightlive at 6:53 AM on September 16, 2015


A pressing of the golden record sent into space the voyager spacecraft has an insanely high bounty on what.cd, for example.
As in, a FLAC of the actual record or some such? Because the CD tracks from the version released with the Sagan documentary are around the 'net.
posted by snuffleupagus at 7:01 AM on September 16, 2015 [1 favorite]


If the 1969 contract has now been found which gave/(gives?) Warner Bros control to exploit her image and likeness, and all the publishing has already been cleared......I don't know what Franklin can do to stop it being shown.

Also weird that Franklin has seen the film and "loves it", maybe she just has beef with Warner now that she's on RCA/Sony and there is some funny behind the scenes stuff happening.
posted by remlapm at 7:03 AM on September 16, 2015 [1 favorite]


Prior injunctions are a massive pain - the UK law on this may have changed since I was on periodicals, because they don't really apply to online publishing, but we had to be really careful.

There was a standing rule never to discuss article contents with -- let alone show copy to -- their subjects before publication, because if they didn't like what you were going to print they could easily get an injunction. On a monthly this was devastating; you missed distribution, you had to warehouse and most probably pulp your entire print run (if you even made your print slot) or reprint if you had time (again, having to buy an emergency print slot - very expensive) and basically stood to lose a big chunk of your annual revenue. Just because Bloggs Computers had gone to a judge and said "Those bastards are about to print something completely bogus about the Bloggotron 2000". Even if the injunction got thrown out on appeal, the damage was done. You couldn't recover your losses. Two in a year could sink you for good. Much better to stay mum and cope with any post-publication flak.

It was really easy to injunct, and companies - especially the bigger ones - knew it.

To give you an example of what could happen: we did a comparative UPS review (ah, those were the days). One UPS came in a flat square case, designed to go under the monitor on the desk, in a format that was popuarly know at the time as 'pizza box'. We referred to the case as such. It was also an awful UPS that did very badly in tests, and we said that too. After publication, the distributor of the product threatened to sue for racial prejudice, because it was made by an Italian company. Obviously ridiculous - he never did sue, nor even take us up on our offer to publish an apology for any misunderstanding (if we had spotted the issue before printing, we'd probably have steered clear of the phrase just out of general good taste, but we just never made the connection).

But it would have been very easy for him to have landed us with a hit, at the time, in the high six digits (those WERE the days), just by going to a judge and spinning a good tale without us even being there to present a defence, or knowing what was going to happen. As we prided ourselves on running our lab tests to a very high standard that would certainly hold up in court (were those the days or what), our review was spot-on and completely defensible. That wouldn't have mattered.

tl;dr - prior injunctions are a bad thing, as remedies exist for damage done otherwise and they can easily be used as a stick to beat the innocent.
posted by Devonian at 7:04 AM on September 16, 2015 [6 favorites]


If the 1969 contract has now been found which gave/(gives?) Warner Bros control to exploit her image and likeness, and all the publishing has already been cleared......I don't know what Franklin can do to stop it being shown.

Also weird that Franklin has seen the film and "loves it", maybe she just has beef with Warner now that she's on RCA/Sony and there is some funny behind the scenes stuff happening.


Because Warner isn't the publisher - Elliott bought the film from them to remaster and publish. His argument is that Franklin's master agreement with Warner transfered with the film, while her argument is that said agreement was with Warner alone, and as such is no longer valid now that they are not involved.

And it's not really weird - for celebrities who live in part on their image, managing that image is very important.
posted by NoxAeternum at 7:35 AM on September 16, 2015


If Franklin's arguments are valid, does that mean that no rights to movies can be transferred without an explicit secondary agreement from the participants on screen, or that this was a lacuna in the original agreement? I can't make out whether this is a general principle she's invoking (albeit for the first time, otherwise Warners et cet would have been aware of it), or to do with the unusual particulars of this one property.

As I understood it, when you sign up for a movie, you agree that publicity/image rights for promotional purposes are part of the package - and why on earth would those ever be separately negotiable after the event? It would give artists a lot of power over studios, and the entire Hollywood behemoth has spent the best part of a century engineering those away.
posted by Devonian at 7:45 AM on September 16, 2015


"Because Warner isn't the publisher - Elliott bought the film from them to remaster and publish"

But either is Aretha Franklin, she didn't write a single song on the album which is split between traditional/public domain and other compositions by other writers who's publishers already cleared the mechanical rights for the album version........so Franklin has absolutely no say in the synch rights or copyright.

This is 100% "image and likeness", the only thing she may or may not have control over depending on what's in that 1969 contract with Warner.
posted by remlapm at 7:55 AM on September 16, 2015


She never explicitly signed a publicity waiver for the movie, like everyone else involved. It was initially seen as an oversight, but eventually it was discovered that the reason was that Warner had a master agreement with Franklin for her publicity rights. What she's arguing is that master agreement was with Warner alone, so now that they're no longer the publisher involved, that agreement is not applicable.

In short, this illustrates why smart filmmakers treat every film as its own entity, and secure all rights to that entity in particular.
posted by NoxAeternum at 7:55 AM on September 16, 2015


So Warners could grant a waiver to the new owner, and that would be that?
posted by Devonian at 7:59 AM on September 16, 2015


More details here.

Apparently, the judge is questioning whether the 68 agreement actually covered the video recording.
posted by NoxAeternum at 8:00 AM on September 16, 2015


"....Kane said that document appeared to only relate to her music recordings."

Ah, well there you have it.
posted by remlapm at 8:06 AM on September 16, 2015



Because Warner isn't the publisher - Elliott bought the film from them to remaster and publish. His argument is that Franklin's master agreement with Warner transfered with the film, while her argument is that said agreement was with Warner alone, and as such is no longer valid now that they are not involved.

And it's not really weird - for celebrities who live in part on their image, managing that image is very important.


Public figures can not have total control over their image. Lance Armstrong can not stop the deluge of documentaries about him, using him image without his permission.

Cleared footage is bought and sold all the time, usually the releases travel with the footage.

This case is all about the details of the terms of the contract Aretha had with Warner, and releases on that shoot signed or implied, and the terms of the sale of the footage to the documentary maker. If her contract at that time makes in writing explicit limited personal appearance release to Warner only and no other parties, that helps her cause, but if not it will come down to a judge.

I would be surprised if she actually contracted a release only to Warners and no third parties without approval, as I assume that some general release would have been implied as this footage would have been intended for distribution to other broadcasters and outlets for marketing purposes. It would have to have been cleared more widely or they wouldn't have bothered spending the money on the shoot.
posted by C.A.S. at 8:26 AM on September 16, 2015 [2 favorites]


Record companies have quite a history of screwing artists, so I'm biased towards Franklin. Plus, arguing with the Queen is wrong.
posted by theora55 at 8:50 AM on September 16, 2015 [1 favorite]


thecaddy: Christ, that's the most cyberpunk thing I'll read all day, even if I go to the library and check out Neuromancer.

I set an RSS feed to PTP me the RAR. I'll have a bot synth it down to the top 10 sentences, and maybe a word cloud.
posted by IAmBroom at 9:23 AM on September 16, 2015


Record companies have quite a history of screwing artists, so I'm biased towards Franklin. Plus, arguing with the Queen is wrong.

True, though I suspect Aretha has probably suffered more from husbands than record companies.
posted by C.A.S. at 11:57 AM on September 16, 2015


IAmBroom, the bounty cannot be claimed with a RAR as those are specifically banned content, see section 1.2.13 of the rules.
posted by ryanrs at 1:02 PM on September 16, 2015 [1 favorite]


As in, a FLAC of the actual record or some such? Because the CD tracks from the version released with the Sagan documentary are around the 'net.

Yea, a non remastered rip of the actual record. Pressings DO exist. There's been big bounties for original vinyls of stuff before, this ones just kind of amusing.
posted by emptythought at 2:30 PM on September 16, 2015


Now I'm imagining a situation in which lawyers for one of the artists featured on the Voyager golden record ascertain that the rights to their client's song weren't properly secured by NASA, and therefore issue a cease-and-desist against the agency. And thus, in order to avoid utter ruin due to the crushing legal costs of non-compliance, NASA scientists are forced to develop a faster-than-light method of travel, all for the purposes of chasing down the rogue probe and destroying it.
posted by Atom Eyes at 3:23 PM on September 16, 2015


"It bothers me that (like always) we're seeing aspersions of greed being cast against the artist for protecting their own interests."

Aretha Franklin has been for decades at best out-of-touch with her representatives in financial matters (unfortunately, a 1999 Detroit Free Press story is paywalled, but the abstract text gives some flavor), and it's variously portrayed as a Rosa Parks situation (perhaps now a "Harper Lee situation") where unscrupulous lawyers and business managers abuse her trust and name in the pursuit of their own fortune, or as a Sunset Boulevard situation, with Franklin an entitled, delusional diva who doesn't recognize that her fame isn't a blank check.

That her initial counsel in the case was Arthur Reed, best known as the "legal Godzilla" for former Mayor Kwame Kilpatrick, doesn't go far to dispel the notion that this is a pyrrhic strategy to extract cash from a documentarian, and the argument that preventing this documentary from being released is in Franklin's interests is a dubious one.

I have tremendous respect for her legacy as a recording artist, and very little respect for her willingness to rip working people off until they put a lien on her yacht. I have very little respect for the contracts foisted on recording artists by labels like Warner, which were even worse when she was at her peak than they are now, but without further information, and in light of a quote from Franklin saying that she had seen the movie and enjoyed it, I can't help but think that the public interest would be better served by releasing the documentary.
posted by klangklangston at 4:08 PM on September 16, 2015 [1 favorite]


Aretha Franklin has been for decades at best out-of-touch with her representatives in financial matters

This is my general assumption. Even, cynically, that there are fees to be run up while windmills are tilted at here.
posted by C.A.S. at 12:39 AM on September 17, 2015 [1 favorite]


ryanrs, sorry, my bad.

.tar.gz
posted by IAmBroom at 9:23 AM on September 17, 2015


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