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Copyright Owners Contributing to the Destruction of Their Own Property

By Posted by Alan Wexelblat

Everyone else is writing about Apple's iTunes music store going DRM-free. Which is, I admit, an interesting move. It's also interesting that they're moving to a 3-tier pricing scheme, after about six years of the Cartel nagging them to break the 99-cents-for-anything barrier.

But like I said, everyone's writing about that. So instead I want to blog about something else. I want to blog about how Roger Ebert, who makes no small amount of money himself from copyrighted works, ended up writing

Don't the copyright owners realize they are contributing to the destruction of their property by removing it from knowledge?

The particular item in question here is an independent film called Sita Sings The Blues. The film itself is a bit complex to explain, so it's probably best if you read Ebert's blog post about it yourself.

Go ahead, I'll wait...

Right, so the thing that makes this Copyfight material is that this indie film, which delighted one of the country's best-known film critics, can't be distributed because it uses eighty-year-old recordings. According to Paley's own blog entry the original request from the copyright holders was for $220,000. That may not be much for a major motion picture, but for a self-made indie film it's a show-stopper.

As questioncopyright puts it, this is ridiculous. Even at the now-reduced price of $50,000 the owners of the copyrights are "forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." This is not hyperbole - as Paley describes in the interview there, the specific music she chose was integral to the film's production. Animation sequences were created around specific songs, and that's part of what Ebert found attractive.

By any measure of artistic judgement, Paley has created a wonderful work. But she's never going to be able to turn that work into a commercial success. Because even after she finishes paying the 50k (on top of $10,000 in lawyer fees so far) she'd be facing a fee schedule that would in effect make sales of the film a losing proposition. By her calculations if she somehow managed to take in $1,000,000 in theatrical receipts she might get between $30,000 and $80,000. Which brings me back around to Ebert's original point - by being greedy and grasping, the copyright holders are destroying their own property.

My guess is that it's safe to say you've never heard (or even heard of) Annette Hanshaw. She was, apparently, quite a remarkable singer some 80-90 years ago. But she's gone and largely forgotten. Now imagine if a film built around her songs had been distributed, and had gotten even moderately popular - would you regard that as a sales opportunity? A chance for a revival, a reissue perhaps? I certainly would. Remember what Belushi and Ackroyd did for much better-known blues artists by using their music in the Blues Brothers films?

Apparently I'm a bad person to hold copyrights because I see things this way. Apparently in the modern way to do things is to create "a barrier between artists and audiences, prohibiting access rather than facilitating it" as Paley says. This reminds me of the massive effort in 2007 to strangle Web radio in its crib by imposing impossible fee structures.

To her credit, Paley isn't willing to give up. She's put together a distribution plan that revolves around creating a limited number of promotional copies and then uploading those to archive.org under some kind of Creative Commons or similar license. From there, she's going to make money by giving it away, and profiting from related things like donations, sponsorships, ancillary products. Shades of Cory Doctorow's "Giving away my books is selling the hell out of them."

Paley admits she's probably never going to make back the money she's invested in this project. She's actively looking for sponsors, legal help, and hoping that all the various rights holders will agree to the 50K plan and that she'll be able at least to repay the loans she's taking out to make this all happen.

Full post as published by Copyfight - The Politics of IP on January 07, 2009 (boomark / email).