How did Mad Hot Ballroom survive the copyright cartel?
Answer: by limiting music that played in classrooms, haggling over clearance fees, and cutting out a scene.
Okay, some background: I saw Mad Hot Ballroom a few weeks ago with a couple of friends and we all fell in love with it. The documentary, directed by Park Sloper Marilyn Agrelo, follows New York public school kids in a citywide a ballroom dancing competition. If you haven't yet seen it, you should run out and do so.
One of the things that amazed me about the movie was how the filmmakers were able to clear so much music on an indie budget. Those of you who follow this blog or who read the Untold Stories report know what I'm talking about: clearing song rights for films has become close to impossible for small documentary films, thanks to the exorbitant rates copyright holders demand.
To find out how the makers of Mad Hot Ballroom dealt with copyright clearances, I talked to producer/writer Amy Sewell by phone last month.
* * * *
Stay Free!: There's so much music in your movie, I'm wondering: did you think about copyright before you decided to do this film?
Amy Sewell: No, and naïveté worked well for me! If I had known all that I had to go through, I'm not sure I would have done it. I read a book about clearances and started clearing the music by myself, but ended up bringing in Mark Reynolds to help. We cleared almost 50 songs before we started filming. American Ballroom Theater, which sponsors the courses and competitions, had a list of songs they use so we took that list and saw what we could clear and for what price. We narrowed that down and went back to American Ballroom Theater and asked them to use only these songs, because source background music can't be edited out easily or cheaply. If a song we couldn't clear -- like "Hit the Road Jack" -- was playing on a boom box, we would have had to cut the scene.
Stay Free!: Did you license the songs for a particular time period, or did you get them for perpetuity?
Sewell: We first cleared music for two years for festival use, and then went back and negotiated for worldwide commercial use in all media, for perpetuity. It was extremely expensive. For most films, music licensing is 1 to 10 percent of the production budget; ours came in at 45 percent: $140,000.
The biggest problem was granting Most Favored Nation status. [Granting a rights holder Most Favored Nation status requires giving them the highest fee you pay for a comparable song. For example, if Warner Chappell asks $10,000 for a clip but you have to license a Sony clip for $12,000, you'd have to also give Warner Chappell $12,000 if it has MFN status. - ed.] I would only agree to that for the classics. Things like Frank Sinatra hits.
I wasn't going to edit or cut any music, so I would continue to negotiate everything down until we could afford it. I'm sure I annoyed people in the music industry. But the industry should have a different set of standard for documentary films. We're not Applebee's.
Stay Free!: When you explain that this is for a low-budget documentary, does that matter to rights people?
Sewell: They do have discounts but the costs are still heavy. As a businesswoman, I don't blame them for making money. I just think the prices should be fair.
Stay Free!: There's a scene where a woman's cell phone rings and she has the "Rocky" theme ring tone. I noticed that you even cleared that! I would have thought that could be an example of fair use.
Sewell: I thought so too. It's only six seconds! But our lawyer said we needed to clear it. So I called Sprint, which owns the ring tone master rights, and they gave it to me for free because they saw it as product placement. But then I called EMI, which owns the publishing rights and they asked for $10,000. I said no way--even the classics weren't getting that much. Luckily, we were able to get it for less.
Stay Free!: How much did it cost for the average song?
Sewell: It depends on how many entities are attached to it. Our typical total cost for a classic was about $15,000-20,000, split between publisher and master rights. With the Rocky theme, the publishers didn't want to overexpose the song. That was the issue with Ray Charles' "Hit the Road Jack" as well.
Stay Free!: He should have thought of that before he did all those lousy Pepsi commercials.
Sewell: But "Hit the Road Jack" was special for him. His lawyer said, "I don't care if you were the president and had half a million dollars, you're not going to get this song." There are two songs Ray Charles seldom granted rights to, "Hit the Road, Jack" and "God Bless America." I love that: "Hit the Road" is right there with "God Bless America."
Stay Free!: There was also a scene with a TV on, and a commercial was on the TV. Did you clear that?
Sewell: That was unidentifiable, so we had to run it by another lawyer for our errors and omissions insurance. (You have to buy insurance to cover all the things in the movie that might be subject to legal questions.) Our lawyers and the insurance agent agreed that it was fair use, though, because it was unidentifiable and on the screen for less than 10 seconds.
Stay Free!: Were there any other inconvenient clearances you had to deal with?
Sewell: Well, we had to watch out for billboards and Frito-Lay
trucks all the time. But I usually didn't care, we would just shoot.
The biggest danger with clearances is when they interfere with
documenting real life. Something spontaneous like a cell phone ringing
is different than a planned event. If filmmakers have to worry about
these things, documentaries will cease to be documentaries! What
happens when the girls go shopping and there's music playing in the
stores? We were lucky because in our movie the music wasn't
identifiable, but otherwise what are we supposed to do: walk up to the
store manager and say, "Excuse me but can you turn off your radio?"
Stay Free!: What about that scene where the teachers start dancing after their meeting? And the one were the kids went up on the rock and danced. Those seemed like they might have been staged.
Sewell: No, we didn't tell anyone what to do. The kids went up there
on their own. And after the meeting, somebody put on a disco song and
the teachers broke out in dance. We thought it was funny.
Stay Free!: Were there any scenes you had to cut out of the film because of copyright?
Sewell: When we were down shooting the boys playing foosball, Ronnie yelled out, "Everybody dance now!" Just when I think we've finished the film, someone points out that we have to clear that because it's a "visual vocal cue." So I went back to the publishers, and the first publisher, Spirit, says they'll throw it in with the other things we've cleared if Warner Chappell throws it in. But Warner Chappell said, "Look, we've cut you some nice deals, we can't give this to you." They said this three-second bit would cost $5,000. And since they had Most Favored Nation status it would have raised the cost on similar uses, like the Rocky ring-tone. So I went back to lawyer and said we should keep it in because this should be a poster child for fair use. But he didn't recommend taking on the music industry. Those corporations have too much money for us to play Norma Rae our first time out.
Stay Free!: You guys should have done it and then gone to the EFF if Warner Chappell threatened you. For a clear fair use like this, lawyers are often willing to work pro bono. And the negative publicity would have scared Warner Chappell off.
Sewell: Yeah, I know, but more than anything else, it's the fear factor. That's what's discouraging.
UPDATE 6/22/05: FAIR USE: USE IT OR LOSE IT
SEE ALSO (12/21/05): Documentary films and fair use.
Posted by carrie on 06/22/2005 | Permalink
carrie, great interview, really good questions. and some discouraging answers. but way to go amy sewell for sticking up for the film and the music. there has got to be a better way.
Posted by: justin | Jun 22, 2005 2:39:43 AM
My blood boils hearing stories like this. Artists have to stop cooperating with these oppressors. Everyone knows these aspects of the US copyright system are wrong, but artists continue to voluntarily pay obscene tributes to these bastards. Let's have an industrywide boycott, stand on our hind legs and collectively declare: "so sue me!"
Posted by: Nina P | Jun 22, 2005 8:58:09 AM
This is absolutely fascinating. It's not really the copyright office (as far as I know and I'm not as informed as I need to be), it's the money-makers which comes down to the labels and music publishers.
As an indie musician, I'm more than a little concerned about this. We are unsigned but signed up with ASCAP a while back so we hope they don't bully broke internet/independent radio to pay us royalities when they have no money. We'll see.
I have found many internet radio stations have to have the musicians sign that they don't owe them royalities which I am perfectly willing to do for exposure and support.
But if you are signed (MAKAR is unsigned) they take this discretion of your hands and try to grab money whereever they can and this is where it gets ridiculous! So an artist or songwriter who wants to support independent works or have their songs in a film for little or no cost may have no say in the matter. It has gotten so bad that cafes/bars etc have to actually pay music publishers for use of playing music in their venues! IT'S FREE EXPOSURE but these money-grabbers have lost sight of that, all they care about is pennies, pennies that usually don't even go to the artist. It is such a chilling effect on creative collaborations between film and music.
So yes this is a messed up situation. I hope that our relationship with ASCAP (and it seems like you have to sign up with ASCAP or BMI for if you don't, you can get screwed in myraid ways) doesn't interfere with us granting use of our songs to who ever we want to give it to. Sigh! Andrea
Posted by: Makar | Jun 22, 2005 10:47:12 AM
I'm not glad it was hard to clear rights, but I am glad that rights had to be cleared; I'm glad that Ray Charles can protect the associations of his performances of his music.
Posted by: barlow | Jun 23, 2005 5:55:23 PM
I just finished working with a documentary video class a couple weeks back. When clearing rights for music or images came up the questions and discussion would go on forever. The students seemed to be exessively worried about publishers coming after them in their student films. I needed to remind them that they should be more worried about making a good movie. It's amazing to me how that threat reaches so far. When Lawrence Lessig talks about how copyright laws can inhibit creativity, it never resonated so much untill talking with these students.
Posted by: Steve Lambert | Jun 23, 2005 6:04:01 PM
I know of a case in a video production class in the division I work for, where the teacher was told to remove several songs from a student-created project because they could "open the division up for prosecution for improper copyright clearance". I can't remember what the exact dividing line was, but I believe it was he couldn't use any part of a sing from 1975 on, which I find COMPLETELY ASSININE.
Posted by: suprunown | Jun 23, 2005 10:27:44 PM
I came at it the other way about: Make the documentary I want to make, including copyrighted material, and deal with whatever I have to change later. Unfortunately, some of my favorite parts of the film have copyrighted music and/or images, so it feels like stripping the soul out of the thing. Now reading this makes me paranoid and immobile.
Yes, there's got to be a better way - this is ridiculous.
Posted by: Chuck Olsen | Jun 24, 2005 4:09:37 AM
I think filmmakers as artist should understand and support the ability to protect your work. That is what most songwriters want. They intrust the publishers mostly to do this on their behalf. Admitedly everyone in publishing does not care about the songwriters wants and are just trying to close a deal. But you need to look at the economics fairly. The worse thing to say to a record label or publisher is that the use is 'promotional'. This comment comes from filmmakers, tv producers, ad agencies, corporate sponsors, webcasters, P2P download sites. So how does the music industry recoup the millions it cost to pay song writers and make records. CD sales are diminishing everyweek. They need to make some revenue from sync uses like films but if you approach them fairly they will more then likely work with you to find a middle ground. It is called Show Business, there is as much Business as there is Show.
Posted by: JK | Jun 24, 2005 1:11:20 PM
I agree with Barlow that it's a good thing that you did have some hoops to jump through. However, if they have the choice of making it easy on you (the paying customer) or hard, you'd think they might choose easy. This is a classic example of why oligopolies are the worst sort of supplier (excepting state-controlled monopolies)
I have probably bought less than $200 worth of music over the course of my whole life (and most of that from clearance bins). Every once in a while, I ask myself why I know every last intonation on every last track by heart rather than invest in new stuff. Then I remember things like this, and I realize it's money more judiciously spent on almost anything else.
Posted by: Legate Damar | Jun 24, 2005 6:27:30 PM
> So how does the music industry recoup the millions it cost to pay song writers and make records. CD sales are diminishing everyweek.
and that's part of the misinformation going around. Independant labels and musicians are more than making up the difference in sales that RIAA is loosing. The majority of the public is informed by only one side of the arguement.
i'm hoping for a day when the most current recognizable music is produced largely by independants. Both Wilco and Aimee Mann are good examples that it can be done, successfully.
Just how much of the $10k for rights does anyone think actually went to pay for the persons responsible for creating the music in the first place?
I worry about our cultural history being robbed from us. There are examples of artists using other artists works that I know of, back to the 50's, only then they didn't need to credit anyone else, much less pay for it.
I doubt if the Rolling Stones could have evolved today in this climate if they didn't have fair use of southern blues music.
Posted by: aikanae | Jun 24, 2005 8:17:23 PM
Section 8, Clause 8:
To demolish the Progress of Science and useful Arts, by securing for unlimited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Stupid founding fathers! Why did they have to put that in the Constitution? If only it had been for a limited time, we wouldn't be in this mess.
Posted by: Barry | Jun 24, 2005 11:10:22 PM
It's one thing when a documentary filmmaker intentionally puts a song or image in a movie, but given the way that our entire environment is plastered with advertising images and copyrighted music blares from speakers in every public space, making a documentary will soon be completely impossible if we don't fight to extend the boundaries of fair use.
Posted by: RDA | Jun 25, 2005 1:27:55 PM
I don't blame the music industry or copyright holders for asking their fees. After all, it is a business.
If anything, documentary filmmakers should NOT use copyrighted music and IP if they can't afford it. They should just either remove the sound and use their own, or create their own original music for the documentary. As for copyrighted images, just smudge it out just as they do in Reality TV shows, such as the Osbournes.
Posted by: James Katt | Jun 25, 2005 6:48:15 PM
barlow | June 23, 2005 05:55 PM:
"I'm not glad it was hard to clear rights, but I am glad that rights had to be cleared; I'm glad that Ray Charles can protect the associations of his performances of his music."
Ray Charles himself was the beneficiary of the free donation of millions of people whose creative work over thousands of years helped form the substance and framework of Charles's own work. I can think of no art however radical that does not depend on and reflect this tradition, this giving-over to the future, and until very recently, historically speaking, it was expected and thought normal. That would include finding one's own performances and compositions in unusual contexts.
The total propertization of artistic and other intellectual work which we now observe is thus a radical departure from human experience leading to many questionable results, some of which are easily seen in the story of this documentary. The most obvious is that, instead of encouraging artistic creation, we are inhibiting it by allowing rentier corporations to lock much of the material up forever.
Is this something we want to do?
Posted by: Gordon Fitch | Jun 26, 2005 9:19:31 AM
Well, of course! Composers don't work for free. I wouldn't use a film in my work if I didn't have the rights. Perhaps this will encourage film-makers to employ independant composers (creating more employment, more opportunities and more focused creativity) instead of relying on set copyrighted tracks.
Posted by: Julian Day | Jun 27, 2005 7:40:52 AM
Thinking again, I'm surprised film-makers feel this way. Would you use unauthorized footage of Marlon Brando or Tom Cruise in this way? Would you protest that you 'cannot use' footage shot by Stanley Kubrick to further your own film ambitions?
Are you even aware of the financial situation faced by most composers/sound artists? Would you like to live thanks to teaching students or working the phones?
Posted by: Julian Day | Jun 27, 2005 7:48:20 AM
This is really a complex issue and needs to be examined more, so that changes are made that both benefit the musicians, in terms of exposure and the filmmakers, in terms of using music. The boundaries of "Fair use" need to be redefined. The US Copyright System can both protect and inhibit artists in their respective industries.
Posted by: G | Jun 27, 2005 10:31:06 AM
JD: Please read the article. It's at the top of the page, above the comments.
Posted by: Nina | Jun 27, 2005 12:21:01 PM
make a graduated level use fee structure like what ASCAP and BMI use for public performance in venues such as bars and theatres. That way they could allow the use of a song conditionally (sp?), and the price would be structured as to the use.
Big studios would have to use the same system that is in place yet, independent documentary artists could pay a quarterly fee ( or something) to use music, that is already being used in a fair use way that they are documenting.
just a thought.
Posted by: atomic elroy | Jun 27, 2005 2:37:17 PM
I agree with Nina Paley's "Artists have to stop cooperating with these oppressors.". I host a show at my community radio station (WEFT 90.1 FM in Champaign, Illinois) every other Wednesday called "Digital Citizen" and I refuse to play anything my listeners cannot at least share verbatim (although it's better if they can build upon it as well). I do this because I respect my listeners freedom to share and build culture and I think we're better off with a share-and-share-alike situation than with what we have now. I don't want other people telling us what we are allowed to express and what we're not. The power of copyright I like is the power to tell others that they cannot share in what we have if they don't share with us. This doesn't preclude private creativity, but when the work is published it should be a part of the commons. And, really, that is how copyright is supposed to go -- eventually all copyrighted works are supposed to become part of the unfettered commons known as the public domain. But that's not what some artists (like Mark Twain) and some publishing corporations (like Disney) want. They want an infinite term of copyright power.
I want to help build popular culture that is based on respect for our mutual need to express ourselves. I'm all for getting paid too, but I don't see that as being necessarily tied to exclusion. In my mind's eye, I see artists being paid by money set aside to fill our world with more art. And I see artists being paid for making art made for some specific purpose (being hired for a job, for example: if I want to start a blog, I may need cartoonists who will come up with something new every week or two. I pay them from money I collect from my subscribers who give me money because they want to see the new stuff coming online every week or two not because they're excluded if they don't pay). And I wonder how much art can be made for a living wage like work can be had doing any other kind of expert work (plumbing, electrical, car mechanic, computer programming, etc.). It seems to me like there's always a market for experts, and I think this could be useful when changing our culture from one based on permission to one based on expectation of something new built from something else.
Regarding "protect"ing one's work: everything is built from something else, no matter how creative or smart the artist is. Our copyright regime gives people the illusion that this is not so, that what you made is built from nothing. If you truly did that, your work would be incomprehensible because we learn by relating what we don't know to what we do know. Please see http://www.gnu.org/philosophy/words-to-avoid.html#Protection for some wise words on why "protect"ing copyrighted works is a wrongheaded philosophy.
Regarding bullying independant radio offline: most radio stations broadcast tracks whose copyright is held by RIAA clients -- virtually every big corporate label you know, and a lot of the smaller ones including Ani DiFranco's label, "Righteous Babe Records". These stations are not in compliance with RIAA Internet broadcasting restrictions. The rules for Internet broadcasting are different than the rules for over-the-air broadcasting despite that both sets of rules apply to the same tracks of audio. Thus, Internet radio stations could be prohibited from distributing those tracks on the Internet if the RIAA felt like defending their own rules. Thus, for stations which want to transmit those tracks who are not yet online, there is an ethical matter at stake: should they (essentially) agree to terms they know they will break? Should Internet radio stations instead stop distributing copies of RIAA's client's tracks and instead focus on distributing copies of tracks that they have a license to share as *the DJs see fit*?
Finally regarding composers working for free: About 20 years ago this same line was said about computer programmers. Then the free software movement came along (which focuses on freedom as in speech, not free as in price) and showed (proof by existence) that not only will some programmers work for zero cost, they collectively will produce the best software in the world which challenges the largest and richest proprietor monopolies around (Apple, Microsoft).
Posted by: J.B. Nicholson-Owens | Jun 28, 2005 12:20:28 AM
Re the above debate, speaking as a video production lecturer, I certainly advise my students of the realities of UK copyright law. This has particular bite for my course as when a student film won a local TV-sponsored film-making prize in the mid-90's, we had to perform major audio surgery to avoid copyright issues linked to music used in the piece. And this on a 2-machine analogue edit suite ! Suddenly students discover that lots of people play music and many these days write it. So a few phone calls, a little slightly more "live" demonstration of Production Management skillsets and the film was redubbed and broadcast. Now My students look for library music and sound effects on the web and then contact - usually possible - the musician/composer directly, explain what they are trying to create and get permission to use the music in return for credits and a copy of the movie . That way, the music is likely to be marketed more widely than it would have been otherwise, and these days student films are seen by all kinds of industry people as the DVD showreel proliferates (and the talent base expands). So - is this a win-win situation ? Well yes, especially if either the musician or the film-maker is exposed to a wider audience. Where would Scorsese have gotten to without "Its really not you, Murray" and the music for that short was I think re-used in "Mean Streets" which should have generated some royalties. Plus ca Change. Students need to learn the craft and copyright must provide one of the bedrock findamentals of that craft. Creativity is one thing but the rights of the creator must be defended.
Posted by: ian osborne | Jun 28, 2005 1:17:03 AM
I'm enlightened, just when I think there is nothing left to debate over I see this. I happened upon this site while searching for a way to submit a song to Tim McGraw. Wow.
Intellectual conversation and to think I wanted royalties off of the song had he chose to sing it and sell it. Then I think, well it is my work, if he profits I should too.
My percentage would be small compared to his but I'm not a multimillionaire, in fact I'm two weeks away from being homeless if I lose my job. I will be paying child support soon and a few extra dollars a month from royalties sounds great to me.
My uncle appeared in the movie Practical Magic, they held up a photo of him, that was it (he was originally in a scene which was later deleted) and because of that photo he receives 300 bucks a month. That's awesome.
I wonder if any sports figures will ever copyright moves???? I can't dunk but what if I could and I violated Shaq's copyright to the lethargic leap? Who knows?
Posted by: Joseph | Jul 2, 2005 1:49:34 AM
I find this kind of information so darn interesting. Music rights is something one could figure out that they needed with little contact in the producing area. But, go figure; who would have guessed the small points you included, i.e. the verbal, "everybody dance now" and that the cellphone ringing would matter? What savvy patience the producers must have gained working towards their successful conclusion.
By the sound of the trials and tribulations Agrelo and Sewell endured, it's amazing they stuck with this movie.
They have my vote for best documentary and my applause for opening millions of eyes, ears, minds and hearts!
P.S. QUESTIONS: If the producers would not have been so particular, could the copyright holders have come back after the film's success and negotiated a larger piece of the pie? And, with the news of a possible lawsuit, could that free publicity have taken the place of millions of dollars worth of paid advertising? Does Ellen have to clear all the music she uses while dancing?
Posted by: Endicott Coolmoss | Jul 5, 2005 12:30:29 PM
>So how does the music industry recoup the millions it cost to pay song writers and make records
Easy, Mr. Troll, they illegally inflate prices of CDs, then pocket >85% of the wholesale price, lie to artists about sales volume and costs, and sue deceased people and people without computers for swapping MP3s.
I can see how you might think that a few seconds of a song that plays for free on the radio might totally destroy the music industry if it got into a documentary nobody watches, though. That makes plenty of sense.
Posted by: blah | Jul 14, 2005 4:34:49 AM
I'm a musician/producer (published) and have always worked on the principle that if someone else is getting paid and they are using my work I should get a fair cut of the pie.
In agreement with my publisher students and no-budget first time directors can *usually* clear use of my music in films and documentaries for nothing (or at least very little), a credit, and a copy of the film.
I may not charge but I still want to be able to clear/refuse use..
Frankly the last thing I want to see is my music used as a bed or used to promote something I find offensive.
Posted by: Stef Stabilizer | Jul 14, 2005 10:47:03 AM
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