Award-Winning Film Can’t Be Distributed Because It Used 80-Year-Old Music

(You can download higher-quality versions of the above trailer here.)

I’ve been a fan of Nina Paley’s comic strips for years, but I didn’t know she’s also an animator. Josh Jasper recently gave me a head’s-up about her full-length, unreleased film, “Sita Sings The Blues.” It’s a bit hard to describe what the film is about, although Roger Ebert, who absolutely loved it, gives it a try.

She begins with the story of Ramayana, which is known to every school child in India but not to me. It tells the story of a brave, noble woman who was made to suffer because of the perfidy of a spineless husband and his mother. [...] Paley synchs her life story and singing and dancing with recordings of the American jazz singer Annette Hanshaw (1901-1985)[...] In San Francisco, we meet an American couple, young and in love, named Dave and Nina, and their cat, named Lexi. Oh, they are in love. But Dave flies off to take a “temporary” job in India, Nina pines for him, she flies to join him in India but he is cold to her, and when she returns home she receives a cruel message: “Don’t come back. Love, Dave.” Nina despairs. Lexi despairs. Cockroaches fill her apartment but she hardly notices. One day in her deepest gloom she picks up the book Ramayana and starts to read. Inspiration begins to warm the cold embers of her heart.

There are uncanny parallels between her life and Sita’s. Both were betrayed by the men they loved. Both were separated by long journeys. Both died (Sita really, Nina symbolically) and were reborn–Sita in the form of a lotus flower, Nina in the form of an outraged woman who moves to Brooklyn, sits down at her home computer for five years and creates this film.

The 80-year-old recordings by Annette Hanshaw which Paley used in her film are now in the public domain. But the songs themselves are not, and the owners — who are large corporations, not the songwriters — demanded about $20,000 a song (about $220,000 total) up front before they’ll give permission for the film to be commercially distributed or sold on DVD — much more than Paley is ever likely to profit from the film, if it’s distributed. (Paley may get them to agree to “only” $50,000 for a limited-run DVD release). Negotiating that much has cost Paley about $10,000 in legal fees.

(Paley has offered to pay royalties from the film’s hypothetical profits, but the music corporations don’t find that acceptable.)

The supposed purpose of copyright law is to encourage artists to create. “Sita Sings The Blues” shows how copyright law fails to achieve this purpose. Rather than encouraging Paley to create, the law makes it as hard as possible on her. And for what? Does anyone believe that the people who wrote Hanshaw’s songs, 80+ years ago, would have chosen not to write the songs had they known that almost a century later, Nina Paley would use the songs in an animated film? Does anyone believe that Annette Hanshaw would have preferred that her songs not be listened to?

It’s not just Paley who loses out. It’s us, as audience members, being deprived not only of a chance to see “Sita Sings The Blues,” but also deprived of the chance to see the films or comic strips that Paley could currently be putting her energy and money into — energy and money that is instead being diverted into trying to get permission to legally distribute “Sita.” Furthermore — much against Paley’s wishes — her story is now being used as a cautionary tale, telling artists to limit themselves, to censor themselves before the big corporations do it to them.

Copyright has become, for artists, principally a barrier to creation.

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27 Responses to Award-Winning Film Can’t Be Distributed Because It Used 80-Year-Old Music

  1. 1
    Lilian Nattel says:

    Copyright law is sticky and more so with the internet, which creates an expectation of being able to freely pick up and use anything and put it in another site. But what if you make a living doing this? Writing has paid my mortgage & put food on the table. (Sometimes more, sometimes less) And even if I died (which I hope I won’t for a long time), there would still be a mortgage on the house and my family living in it. As it stands now, work goes into the public domain 70 years after the death of the author in the U.S. (with exceptions about work before some date, which I forget). Since the singer died in 1985 that would still leave a while to go. (In Canada it’s 50 years). On the other hand, I think that the corporation should give her a break & not be so stingy about helping out a creative venture. The culture of the internet (free with attribution) for parts of work should extend to situations like this one. All kinds of businesses (book stores, cafe’s, book festivals) expect writers to read and talk for free for the sake of “promotion”–but none of them seem to extend the same courtesy.

  2. 2
    Jake Squid says:

    One of my favorite films (although it’s been 24 years since I’ve seen it so maybe it isn’t as good as I remember), Nothing Lasts Forever has never been released because they used WWII era newsreel footage. Yay.

  3. 3
    marmalade says:

    But what if you make a living doing this? Writing has paid my mortgage & put food on the table.

    Since the artist offered to pay royalties, it appears that the corporations are just being shamefully, needlessly greedy. Accepting a percentage of the artist’s actual profits would get the work released *and* let the corporations make a buck on their investment.

    Perhaps it’s not greed and they have some other unsaid agenda. After all, they get NO money if the film is not released!

  4. 4
    Silenced is Foo says:

    No, I think they just want to have their cake and eat it too. A fixed amount means they get their money even if the movie tanks and nobody even hears their music appropriated in the movie.

    Plus, if you think about it, they probably do this as a standard approach to avoid diluting their brands. By going with a fixed amount, they cover their own legal costs and ensure that the music will only be used in things of a quality suitable for their assets (note, to businessmen quality=price).

    Either way, the way that copyright expiry dates get pushed back every time Steamboat Mickey is about to become public domain is the most blatant and obvious piece of cronyism I can think of.

  5. 5
    Julie says:

    “Does anyone believe that Annette Hanshaw would have preferred that her songs not be listened to?”

    This, for me, is the crux of the issue. Copyright law isn’t only preventing artists from creating, it’s preventing artists from getting exposure. I’m reminded of a documentary I saw – I can’t remember what it was called – in which a filmmaker wanted to use a brief clip from the Simpsons. Matt Groening gave his permission, but Fox’s lawyers put the kibosh on it, demanding $25,000. Both artists lost.

  6. 6
    Ampersand says:

    But what if you make a living doing this?

    Currently, I do make a living doing this.

    But I don’t think current copyright law actually makes it any easier for me to earn a living. Rather, I think it makes the overall pie smaller. To look at the current example:

    1) There is no question of the law helping artists to earn a living, in this case. Annette Hanshaw, her songwriters, and their heirs aren’t going to be paid a cent here, no matter what happens, because they’re not the owners of the work. The one genuine artist involved — Nina Paley, who does “make a living doing this” — is being made far less likely to earn a living.

    2) But if Annette Hanshaw’s heirs were the theoretical beneficiaries of these rules, they wouldn’t actually benefit, because you can’t get blood from a stone, and you can’t get $220,000 from Nina Paley. What would benefit them, in this hypothetical case, is for Paley to pay reasonable royalties or fees. Not only would that mean they’d get some money, but they’d also get secondary profits due to people watching Paley’s film and then getting interested in Hanshaw’s work.

  7. 7
    Ampersand says:

    Part of the problem is that the rules are written for “the big score.” The reason they charge fees like this is because there are cases — Gilmore Girls DVDs, for instance — where the producers are able and willing to pay these kind of fees to use music.

    As Paley points out, it no longer takes a major studio to make a feature-length, critically-acclaimed, award-winning film. Paley did it on her desktop. And there’s no ethical reason to think that Paley’s efforts are less socially valuable or worth supporting than some major motion picture from MGM. But the rules are designed to charge everyone MGM level fees upfront.

  8. 8
    Susan says:

    It is pretty generally accepted by those who work in this field that we need wholesale reform of copyright and trademark laws. The law we have currently was mostly written in the 19th century (if not the 18th) and has been outdated by technology.

    There is substantial pressure on all sides for such reform, and I’m hoping that it takes place, the sooner the better.

  9. 9
    RonF says:

    Rather than encouraging Paley to create, the law makes it as hard as possible on her.

    Furthermore — much against Paley’s wishes — her story is now being used as a cautionary tale, telling artists to limit themselves, to censor themselves before the big corporations do it to them.

    Copyright has become, for artists, principally a barrier to creation.

    I disagree. Paley is free to create, and copyright provides her with a way to ensure that she will control any profits from her work.

    Paley’s problem she sought to use someone else’s work and incorporate it into her own without compensating the owner of that other work. Would Paley desire that other people would be able to use her work without compensating her? No, of course not.

    And for what? Does anyone believe that the people who wrote Hanshaw’s songs, 80+ years ago, would have chosen not to write the songs had they known that almost a century later, Nina Paley would use the songs in an animated film? Does anyone believe that Annette Hanshaw would have preferred that her songs not be listened to?

    It’s not just Paley who loses out. It’s us, as audience members, being deprived not only of a chance to see “Sita Sings The Blues,” but also deprived of the chance to see the films or comic strips that Paley could currently be putting her energy and money into — energy and money that is instead being diverted into trying to get permission to legally distribute “Sita.”

    OTOH I find much to agree with here. Copyright is necessary, but whether the ability to own a property right to a work of art in this nature (as opposed to actually owning it as a physical object) for 80+ years is necessary to ensure the encouragement of creativity is certainly debatable.

    It brings to mind the case of Disney and other such companies getting copyright law changed because their corporate empires are built on the use of works such as Mickey Mouse. They knew the rules; you get exclusive use for ‘x’ number of years, and then it’s open to everyone. The fact that their profits will be affected by the lapse of the copyright sounds to me like a flaw in their business model, not one in the law.

    Consider the consequences of patent law to pharmaceutical companies. It takes a great deal of money and time to invent and market an effective new drug. Then, after a certain number of years the patent expires and other companies are free to make versions of the same drug themselves. That cuts into the inventing company’s profits. They have to deal with that and keep inventing new drugs to stay in business. Why should Disney, etc., get to have a different business model? I’m a lot more dependent on having new drugs than on having a new Mickey Mouse cartoon.

    As far as how this corporation’s actions go – the right to own something includes the right to be an asshole about it. Why this corporation is acting as it is doing is beyond me. It seems to me that Paley is creating a previously non-existent market for a work they own, so I’m curious as to why they’re not jumping on that opportunity.

  10. 10
    RonF says:

    Julie:

    Copyright law isn’t only preventing artists from creating, …

    Again – copyright law doesn’t prevent artists from creating, it prevents them from creating something from someone else’s work without permission. Copyright law didn’t prevent Amp from creating Hereville, but it did prevent him from using a troll from a Disney film. Now, say that it would be better if the right to give or withold that permission should be limited to a shorter time period than it is now and you may have a reasonable point.

    it’s preventing artists from getting exposure

    Are you talking Paley or Hanshaw? Paley can control how much exposure as long as she creates works that are 100% her own (as Hereville is 100% Amp’s). Hanshaw’s exposure is under the control of the owner, but that’s not Paley’s problem and Hanshaw’s heirs should have thought of that when they sold the rights to the works.

    Amp:

    “But the rules are designed to charge everyone MGM level fees upfront.”

    Those are the owner’s rules, though, not the rules of copyright law. I’d be very uncomfortable with the law (i.e., the Government) having any say in how much an artist’s work is worth.

  11. 11
    Silenced is Foo says:

    I personally think that RonF is right – the owner of a copyright has the right to do whatever they choose with their work.

    However, I think the problem is the timeline – the yields of an 80 year old work is not going to be enjoyed by the person who sweated to produce it, and very possibly not even their children. At this point, it’s simply putting corporates that have bought up intellectual property over giving access to useful assets to up-and-coming artists. A lot of art requires aggregation of art to be produced, and so things that make this aggregation easaier (like using old work that has run its course in a public-domain manner) DOES encourage the creation of new art.

    So yes, in this case I’d say that copyright law is a net negative for the creation of new art, which is kind of the point of copyright law.

  12. 12
    Charles Brubaker says:

    I remember Ted Rall telling me about how he wanted to include “Mallard Fillmore” in his Attitude book. While Tinsley agreed for an interview it was cancelled because Rall couldn’t get permission to use examples of the strip in the book (Mallard Fillmore is copyrighted to King Features, not Tinsley himself).

    I realize that just about everyone who reads this blog are NOT fans of the strip (myself included) but if the copyright law made it hard for Rall to INTERVIEW the guy, then something’s up.

    I really want to see Sita, I really do. I hope Nina can get get it seen someday.

  13. 13
    sylphhead says:

    I’m reminded of a documentary I saw – I can’t remember what it was called – in which a filmmaker wanted to use a brief clip from the Simpsons. Matt Groening gave his permission, but Fox’s lawyers put the kibosh on it, demanding $25,000. Both artists lost.

    This was mentioned in Free Culture, I think. The filmmaker didn’t even use a “brief clip from the Simpsons”, as such. It was a brief clip of a bunch of people sitting down, with The Simpsons playing on a TV in the background, on the periphery and out of focus.

    Again – copyright law doesn’t prevent artists from creating, it prevents them from creating something from someone else’s work without permission.

    This is an oversimplification. Sampling or synthesizing existing works is a form of creating. This can especially be true of documentary filmmaking, as has been mentioned above. Also, as someone mentioned Steamboat Willie – the whole reason why the copyright window keeps getting pushed back – it’s worth noting that Steamboat Willie itself most likely would not have been able to be made today, what with it being a one-to-one knockoff of a Buster Keaton film. Even right down to the music, if memory serves.

    Personally, I think that whenever the creator and the copyright holder are not the same person, we should automatically move to compulsory licensing.

  14. 14
    Ampersand says:

    RonF wrote:

    Paley can control how much exposure as long as she creates works that are 100% her own (as Hereville is 100% Amp’s). Hanshaw’s exposure is under the control of the owner, but that’s not Paley’s problem and Hanshaw’s heirs should have thought of that when they sold the rights to the works.

    It’s quite likely that Hanshaw (and the songwriters) had to give up ownership as a condition of working in venues that made it possible to earn a living.

    Bill Watterson, the creator of Calvin and Hobbes, wrote:

    Today, comic strip cartoonists work for syndicates, not individual newspapers, but 100 years into the medium it’s still the very rare cartoonist who owns his creation. Before agreeing to sell a comic strip, syndicates generally demand ownership of the characters, copyright, and all exploitation rights. The cartoonist is never paid or otherwise compensated for giving up these rights: he either gives them up or he doesn’t get syndicated.

    The syndicates take the strip and sell it to newspapers and split the income with the cartoonists. Syndicates are essentially agents. Now, can you imagine a novelist giving his literary agent the ownership of his characters and all reprint, television, and movie rights before the agent takes the manuscript to a publisher? Obviously, an author would have to be a raving lunatic to agree to such a deal, but virtually every cartoonist does exactly that when a syndicate demands ownership before agreeing to sell the strip to newspapers. […]

    Why does this happen? As the syndicates will tell you, no cartoonist is forced to sign the ridiculous contracts the syndicates offer. The cartoonist is free to stay in his $3.50 an hour bag boy job until he can think of a better way to get his strip in the newspapers. Simply put, the syndicates offer virtually the only shot for an unknown cartoonist to break into the daily newspaper market. The syndicates therefore use their position of power to extort rights they do not deserve.

    And of course, there are some people who do decide not to give up any of their rights, and as a result their work is never given wide distribution. Is that really a benefit to society?

    Back to Ron:

    “But the rules are designed to charge everyone MGM level fees upfront.”

    Those are the owner’s rules, though, not the rules of copyright law. I’d be very uncomfortable with the law (i.e., the Government) having any say in how much an artist’s work is worth.

    By creating the legal possibility of an effectively neverending monopoly of ownership of artistic works by corporations, the government is virtually guaranteeing that these sorts of abuses will occur.

  15. 15
    RonF says:

    Sampling or synthesizing existing works is a form of creating.

    Sure. But it uses someone else’s work, and on that basis is not 100% new and thus should not be 100% under the control of the creator.

    By creating the legal possibility of an effectively neverending monopoly of ownership of artistic works by corporations,

    I’ve already said that a dispute over the length of time involved here is reasonable. Walt’s dead, and his heirs and his corporation have made enough money off of Mickey. A monopoly over a created work should be due the creator for a limited time, but not forever – that’s always been a central concept in copyright and patent law both, I believe. If Disney can’t come up with enough new characters to keep themselves in business then too damn bad for them.

    Now, about those syndicates. It seems that there are two different opportunities here. One is for the newspapers to wise up and understand that there are a lot of good cartoons out there that for one reason or another aren’t going to be marketed through the syndicates – as the Internet has made much more readily discoverable than it was when the syndicates came into being. You don’t NEED the syndicates anymore to sort through a bunch of comics and find good ones to publish in your newspaper.

    The second opportunity is for someone to start up a new syndicate that gives far better terms to cartoonists and then start marketing their cartoons to newspapers. It won’t start overnight, but the existing syndicates had to start up at some point as well.

    Because I gotta tell ya – the newspaper cartoon pages have got a lot of strips from people who have run out of things to say. I mean, the Chicago Tribune actually is re-running Peanuts! They call it “Peanuts Classic”. Charles Schultz was wonderful. He’s dead. Buy the books! Give that space to a new voice!

    Do syndicates have exclusive agreements with newspapers? By which I mean, can a newspaper publish cartoons from anywhere, or does their contract with a syndicate specify that they can only buy cartoons from that particular syndicate and nowhere else?

  16. 16
    Silenced is Foo says:

    Scott Kurtz is offering a pretty damned good webcomic in pvponline for free to any newspaper that wants to print it. I don’t think he’s had any takers outside of the college paper circuit.

    I think the syndicates have got their target pretty well sewn up.

    The problem, I think, is that I doubt any paper got (or lost) subscribers purely on the strength of its syndicated comics page, so they keep it up as a compulsory, half-assed gesture. Actually seeking out funny and original artists would be too much work.

  17. 17
    Ampersand says:

    I don’t want to focus too much on the syndicates in particular — the newspaper strip is a dying art form anyway (although the internet strip is alive and well).

    I quoted that bit as a response to Ron’s claims that artists shouldn’t sign away the rights to their work in the first place. In many cases, if you don’t sign away the rights to your work, you’re giving up the chance to earn a decent living — or to earn a living at all. As Watterson wrote: “The cartoonist is free to stay in his $3.50 an hour bag boy job until he can think of a better way to get his strip in the newspapers.”

    That same thing is true for singers and songwriters, and may have been more true 80 years ago. The parties are not negotiating from equal levels of power, and it’s inevitable that if the law allows the more powerful party to take advantage, the more powerful party will do so.

  18. 18
    Ampersand says:

    Sampling or synthesizing existing works is a form of creating.

    Sure. But it uses someone else’s work, and on that basis is not 100% new and thus should not be 100% under the control of the creator.

    Paley doesn’t claim that her works should be 100% under her control; she thinks other artists should be free to incorporate bits of her works into new works.

    A monopoly over a created work should be due the creator for a limited time, but not forever – that’s always been a central concept in copyright and patent law both, I believe.

    In my ideal system, no one would get a monopoly over their work at all — not in the strong sense you mean. I think that anyone should be able to incorporate anyone else’s work, so long as they make it into a substantively new work.

    ETA: I do see an argument for some sort of “mandatory licensing” scheme, where a profitable work by Alice which substantially incorporates a work by June (more than just a blurry TV show playing in the background), will have to pay June some sort of royalties.

    If we do have to have a monopoly, though, the original length of time the Founders used — which was, iirc, 14 years — seems reasonable.

    If Disney can’t come up with enough new characters to keep themselves in business then too damn bad for them.

    Ironically, most of Disney’s creations are actually retellings of works that are in the public domain.

  19. 19
    Ampersand says:

    I remember Ted Rall telling me about how he wanted to include “Mallard Fillmore” in his Attitude book. While Tinsley agreed for an interview it was cancelled because Rall couldn’t get permission to use examples of the strip in the book (Mallard Fillmore is copyrighted to King Features, not Tinsley himself).

    Wow, that’s completely appalling. And harmful to Tinsley’s best interests, as well. I wonder why the hell King Features didn’t want to allow Tinsley to get the Attitude treatment? It’s free publicity.

  20. 20
    Nina Paley says:

    Thanks Ampersand, thanks all.

    Would Paley desire that other people would be able to use her work without compensating her? No, of course not.

    Wrong. Please read Sita’s distribution plan.

    But it uses someone else’s work, and on that basis is not 100% new and thus should not be 100% under the control of the creator.

    Absolutely. All creative work builds on what came before; nothing is 100% new, therefore no “creator” (or assignees) should have 100% control over it. The old songs in “Sita” were all based on pre-existing songs. “Sita” is based on pre-existing stories, pictures, and music. It came through me, but it isn’t of me.

  21. 21
    RonF says:

    [Paley] thinks other artists should be free to incorporate bits of her works into new works.

    Who gets to decide how much of her work = a bit? See, you still have the problem. It has to be up to her.

    I would oppose mandatory licensing. It seems to me that if you own intellectual property it’s up to you to set the price, including setting it so high that no one buys it. Eventually the copyright expires and then anyone can use it for free. If “eventually” = too long, let the term that you can hold a copyright be shortened (see my example of patenting drugs).

  22. 22
    RonF says:

    All right, which one of you SOB’s said something about “Girl Genius Online”? That cost me about 6 hours of productivity.

    Or was it over at Kevin Moore’s site?

  23. 23
    Sailorman says:

    I’ve posted on Girl genius a few times, blame me if you want. Have I convinced you to start reading order of the stick and erfworld yet?

    My morning “open in tabs and read while drinking coffee” comic list includes girl genius, OOTS, tom the dancing bug, this modern world, doonesbury, saturday morning breakfast cereal, partiallyclips, xkcd, goblins, non sequitur, dilbert, and monty.

    in particular, order of the stick, girl genius, partiallyclips, xkcd, and saturday morning breakfast cereal are not as well known as they should be.

  24. 24
    Silenced is Foo says:

    @RonF – heaven help you if you discover Sluggy.Com – Pete Abrams’ art doesn’t come close to Foglio’s, but the combination of the punchline-per-strip, super-long plot arcs, and daily strips going back to 1997… yeah, if you start reading Sluggy, you can kiss a few weeks goodby.

  25. 25
    RonF says:

    Too late – I already have a terminal Sluggy infection.

    I used to read Bruno until it ended, but I use it as a portal to read Goats, Penny Arcade, Sinfest, Sluggy, Scary-Go-Round and Penny Arcade. On Keenspot I read Wandering Ones, Bruno the Bandit, Clan of the Cats, Goblins, Zebra Girl, the Devil’s Panties, Striptease, Penny and Aggie, El Goonish Shive, Templar Arizona, Menage a 3, and College Roomies from Hell. I also read Wapsi Square, In Contempt, Wondermark, Partiallyclips, Day by Day, xkcd and Schlock Mercenaries (I pick up the latter two from Grim’s blogroll – http://www.grimbeorn.blogspot.com – which I also read for the posts). I also keep checking on “Breakfast of the Gods”. It hasn’t updated for a while but I don’t think he’s given up yet – it’s too close to the end.

    There’s also http://www.kurlander.blogspot.com. They post a picture or two daily and supply their own captions. You post your caption in the comments section. After a few days the operators promote the captions they like from the comments section to the home page. Although for denizens of this blog I should warn that Thursday is “babe day” (bikinis).

    I’ll check out OOTS and erfworld and see how it goes. Probably late Saturday night.

  26. 26
    Silenced is Foo says:

    I notice that Questionable Content is conspicuously absent from that list. Easily one of the best-looking webcomics online right now… and it’s mind-blowing when you compare it against Jeph Jacques’ first outings. Moves at a glacial pace, but reading the archives is good fun.

  27. 27
    nobody.really says:

    [D]octors were worried about jaundice. By the evening, the child had fallen into a state of severe lethargy. We called the doctor. He wanted a report in two hours. If she did not improve, he wanted her taken to the emergency room. By midnight she had not improved, and so I bundled her into the car seat and raced to nearby Children’s Hospital.

    As I sat waiting for the doctor, I began reading an article I had found through Google about jaundice and its dangers. Fortunately, the piece was published by the American Family Physician, which makes its articles available freely on the Internet. And so with an increasing feeling of panic, I read about the condition–hyperbilirubinemia–that the doctor feared our child had developed.

    I reached a critical part of the article. It referred to a table. I turned the page to see the table. The table was missing. In its place was a notice: “The rightsholder did not grant rights to reproduce this item in electronic media.” No one had licensed the table for free distribution. Distribution was thus blocked. “Have your lawyer call my lawyer,” the article seemingly urged.

    Lawrence Lessig discusses the bizarre legal burdens of making and distributing films, especially documentaries, and expresses concern that this legal regime will become the norm for books in Google’s digital library.