Friday, April 20, 2007

WKRP in Cincinnati and Section 114(b)

Wired magazine has been covering the saga of putting the TV show "WKRP in Cincinnati" on DVD. The first story, from March 2005, details how the show's license to use music in the original show did not extend to syndication or DVD. Since the show involved a radio station, music was an integral part of the plot. The most recent story, from Tuesday, gives the solution:

The series will finally be released on DVD on April 24th, but fans are already irate. The music originally included in the show has been replaced by generic muzak in order to placate the almighty copyright gods, who would otherwise have prevented the series from being released by (apparently) demanding so much licensing money as to render the whole project unfeasible.

Here's an account of the situation from the guy whose job it was to replace the offending musical compositions in order to pave the way for the series' release on DVD:

"During my years with MTM, I was asked to perform the most painful duty I have ever had to do in entertainment business. I was given the task of excising much of the original music from the episodes and replace it with Muzak-style songs that could be licensed in perpetuity for a small flat fee. This was deemed necessary in order to keep the program in syndication.

"The new music that was inserted into the show sucked ass. It was wrong for the feel and attitude of the show. Some scenes relied on specific songs at particular junctures (i.e., Les Nessman trying on a toupee to the soundtrack of Foreigner's “Hot Blooded”) . Those scenes were ruined. In many instances, we couldn't even finesse the proper audio levels in order to cut the costs of replacing the music...

"Allegedly, the original producer of the show (Hugh Wilson) was involved in replacing the Muzak with some other generic songs that are more palatable. While this is admirable, and Wilson has some great artistic instincts, it still isn't enough to undo the damage."

"Music" in the above discussion refers not to the musical composition, but to the sound recording. Making DVDs of music even when included in a TV show involves the reproduction right, and without a license from the music composition owner, no such DVD can be distributed. The real problem is the sound recording then. The muzak solution is the cheap way out. Other times, as with sound track albums, a sound-alike band has been hired to produce a sound recording mimicing exactly the original performance. This happened with the soundtrack to Peter Fonda's 1969 "Easy Rider" movie, when The Band would not give permission for its song The Weight to be included in the (vinyl) album, and so a cover was done by Smith. A reviewer on amazon.com gives the story in connection with a 2 CD release:

In some ways it's fitting that the soundtrack to this landmark film has suffered a series of legal hassles from The Man. In its original 1969 vinyl release, it was denied the film's use of The Band's "The Weight" (by the band's then-label Capitol), and a sound-alike cover by Smith was issued in its place. More recently, the soundtrack was withheld from domestic CD reissue, squeaking out a European version many years before MCA's 2000 digital issue. The latter reunited The Band with their film-mates, at the expense of altering the original Smith-bred artifact. Hip-O's deluxe two-disc reissue provides the best of both worlds - including both versions of "The Weight" - and filling out a second disc of contemporaneous radio hits.

One can now decide which one prefers, Smith or the Band. The legal basis for covers of sound recordings goes back to the original 1971 legislation granting federal copyright in sound recordings, embodied now in Section 114(b):

The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

8 comments:

Ron Gertz said...

Welcome to the world of music clearance. Over the years I have consulted for distributors of many such tv/film programs seeking extended or additional rights in musical works or sound recordings.
The story is always the same. The producer of a tv program sought to save money up front by limiting the term of the musical work licenses and/or did not clear the sound recordings in reliance on 112(a). The fallout would be the problem of the distributor well after the producer was off the job (after having received his under budget bonus). I get the call years later - give the license fee estimates - the program goes back on the shelf - I get another call the next year - same or greater fee estimates, back on the shelf etc. No other choice but to replace the music. Every few months, until he died, Carl Sagen would call me and ask if there were a way to secure off PBS rights to the music in his series "Cosmos" - always the same answer - back on the shelf. One time he did buy me lunch.

Ron Gertz

joshua wattles said...

Echoing Ron on this, Wired got the story a little skewed. The music publishers are every bit as demanding and expensive as are the owners of the soundrecordings in these renewal situations so the "Muzak" replacements are of both lesser compositional works as well as lesser recordings.

The sad part is that most of the artists and songwriters, certainly in the case of a WKRP, would be delighted to cooperate and encourage reasonable licensing deals. But then both the music owners and the owners of the program would have to give a little on their anticipated margins with some poor music clearance person in the middle trying to run interference not just once but hundreds of times to cover the breadth of work represented in all the seasons of WKRP.

Edith Kamon Barton said...

Lunch with Carl Sagan sounds more valuable than with 100,000 tv producers.

What about clearing for DVD a series like Don Kurshner's Rock Concert, Midnight Special or even American Bandstand? If the show captures original performances (and the musicians signed contracts with the show's producers), you would have to clear the publishing but could you skip the record company (unless the artist was lip synching to a master recording?) Would a record company that had an artist under an exclusive recording contract be able to claim any ownership to the recorded live performance in absentia?

Jim said...

Just don't release it. Let's start an underground network to dub VHS tapes of the originals if we have to. God, these greedy bastards could f-up an anvil . . . Yeah, I know - I'm on some RIAA hit list or something now. Whatever . . .

Anonymous said...

The licensor of each musical cut wants all of the profit to be had from selling the DVD's (or more). So none of them gets any of it.

This is one situation where I wish Congress would impose mandatory licensing with low fees.

Anonymous said...

In addition to a substituted-music audio track, DVD producers should include on each disc a (synchronized) dialog-only audio track, plus a very detailed and accurate playlist for the original musical cuts (artist, version, exact fade-in/out time, etc). They could even tie the video, audio, and playlist together with, e.g., SMTPE timecode.

Obviously home viewers might use computers to re-sync the omitted musical cuts (played back from viewers' own lawful copies of recordings) with the video and dialog.

If the idiots who won't (re-)license music for DVD's were to calm down long enough, they could survey home viewers to discover what proportion of them preferred the original music enough to play it for themselves. This could help inform more reasonable music licensing negotiations.

Karl Fogel said...

This is another example of the "ghost works" problem we're talking about over at http://www.questioncopyright.org/ghost_works.
It is not, unfortunately, a rare situation...

Anonymous said...

WKRP is a classic! I would think an agreement could be made to pay each owner of the music copyrights a few pennies per DVD sold in order for such a great show to be viewed as originally aired.

after all, the songs are never played complete, only snippets.