Why there aren’t DVDs of some of your favorite old TV series

by Ted Frank on October 13, 2006

The reason, Mark Evanier notes on his blog, we don’t see DVDs of shows like “SCTV” and “WKRP in Cincinnati” is the difficulty and expense of rights clearances for music used during the show, even if it’s just a character humming. More on the difficulty and problem of rights clearances: Oct. 17, 2005 and links therein.

Warner Home Video better hope that a class action attorney with time on his hands doesn’t read the post’s last sentence about a DVD advertised as uncensored that isn’t uncensored; maybe it can be averaged out with the suit over Wal-Mart’s CDs.

Update: A commenter raises an important point:

While I agree that fans of such shows would be annoyed, I don’t understand why this is fodder for overlawyered. There are copyright laws in this country. They are enforced. And we have the freedom to contract.

If the owners of WKRP want to release the series they have to pay for rights to the songs. By what right should they get to use the songs for any amount less than what the copyright holders are willing to take?!

There are two separate issues. One is the issue of fair use; the other that of the bilalateral holdout.

Let’s start with the fair use issue. It’s almost certainly legal for a documentary to use a snippet of a song in the background as it is filming. But it will also almost certainly be cheaper for the documentary maker to pay for the rights to the song than it is to litigate whether that right is available. By making fair use expensive, rather than free, the public is worse off because there are fewer creative works available. A change in the legal rules to deter meritless challenges to fair use would benefit everyone.

The second issue is that of the holdout, and is more ambiguous. X owns the right from Y to use a song in a tv series, but, because of poor contract-drafting doesn’t obtain the same right for use in the future medium of DVD. The song has become associated with the tv series, and is now worth more than it was ex ante; Y tries to extract economic rents that were generated by X. It’s a sensible argument to say we shouldn’t cry for the inside-baseball machinations of studios and music-rights holders jockeying for these economic rents; they had the ability to protect themselves, but failed to do so, and the problem will disappear in the future as entertainment lawyers learn to account for non-existent technology in current contracts. Still, in the short term, some deals will break down or not get made at all as the two sides play chicken, and consumers are a little bit poorer in the process. A society can choose to have a mandatory licensing scheme (as the US does in many other copyright areas) to prevent the loss of consumer surplus when these negotiations break down; or a society can choose to let copyright holders attempt to maximize their own utility and wealth, though at the expense of requiring expensive lawyers to negotiate these things, with the result that fewer beneficial deals get made. It’s not immediately clear to me which is “better.”

{ 29 comments }

1 rbb 10.13.06 at 8:48 am

Why do you think that it took so long to get the “Married with Children” series to DVD? And why did they packages advertise a new opening theme song?

2 Ima Fish 10.13.06 at 9:09 am

While I agree that fans of such shows would be annoyed, I don’t understand why this is fodder for overlawyered. There are copyright laws in this country. They are enforced. And we have the freedom to contract.

If the owners of WKRP want to release the series they have to pay for rights to the songs. By what right should they get to use the songs for any amount less than what the copyright holders are willing to take?!

3 Ima Fish 10.13.06 at 10:42 am

“Let’s start with the fair use issue.”

As these involve for profit shows I’m don’t see how fair use comes into play. Certainly, if I put a part of a copyrighted song in my home movie, § 107 would protect me. But I don’t see how it would protect a television studio.

And think about this, if the studio had a fair use right to use the songs, then why did they license them in the first place for broadcast? Clearly by licensing them the studios admit they have no fair use rights.

“Y tries to extract economic rents that were generated by X.”

I simply don’t see that as a problem. The studio wanted to use music. It licensed music for use in the show but not for use on a technology that had not yet been invented. Now the song owners want to get paid for that second attempt by the studio to milk money from the show.

Y owns the songs, thus Y has every right to extract any amount of money X is willing to pay.

4 Paul Dow 10.13.06 at 11:00 am

I believe Ima Fish isn’t getting the real issue here. WKRP, being set at a radio station has scores of songs being played in the background during a full season. (pun intended) Each of those songs would need to be paid the full royalty, and there’s no way to edit them out since there’s character dialog over them. The cost to the consumer would need be way above what other television show compilations cost, and above what the market would bear. Therefore very few sales. Therefore no DVD is issued. Therefore the owners of the program get no profit and the music license holders get no profit.

It would make sense to the music executives to revise the license arrangements for incendental music to give them some profit instead of nothing. Also since DVD’s are a significant form of profit for the program producers, I’ll bet new productions will minimize including music in shows so the music licensors get nothing there too.

5 Dwight Brown 10.13.06 at 11:20 am

Paul Dow makes exactly the same points I was going to make, especially the “some profit instead of none at all” one. Well played, sir.

The only thing I would add to his comments is that, in some cases, the music is more than incidental: it is pivotal to the episode. For example, at least one episode of *WKRP* revolved heavily around Elton John’s “Tiny Dancer”, to the point where the episode makes no sense without the song.

There’s also the story of the first season DVD box set of *The Profiler*: episode #4 is missing from the set, because the plot of the episode revolves heavily around the Police song, “Every Breath You Take”, and the rights were too expensive.

6 Damin J. Toell, Esq. 10.13.06 at 11:35 am

FWIW, there are quite a few ‘SCTV’ sets out on DVD. From reading Mark Evanier’s blog, perhaps you meant ‘SNL’ instead?

[TF: The SCTV sets are incomplete, and include only the NBC versions, because of these issues, as Daniel Frank has documented. Of course, SCTV apparently never got the rights in the first place.]

7 Ima Fish 10.13.06 at 11:37 am

“It would make sense to the music executives to revise the license arrangements for incidental music to give them some profit instead of nothing.”

You’re right, I agree 100%. That would make sense. However, it’s not my right to tell the copyright holders what to do with their songs.

This sort of reminds me of the KELO decision. It certainly benefits the community to make holdouts sell their property for a “fair” price so that revenue producing entities can move in on the land.

Maybe the government should solve this “problem” by setting all prices for us. Apparently the market is unable to fix this “problem” so I don’t see any other solution. Is that really what you guys want? Do you want the government telling us how much toothpaste should cost?

Seriously, the market will fix this so called problem. As already stated, “the problem will disappear in the future as entertainment lawyers learn to account for non-existent technology in current contracts.” And eventually the music industry and the TV studios will work out a deal. If they don’t, then it’s simply a case where the market cannot support the cost of the product, i.e., the demand for the shows with the original music at the price required just isn’t there. There are plenty of items that are not sold due to the costs involved and the lack of demand by consumers to pay those costs.

8 Ima Fish 10.13.06 at 11:39 am

“in some cases, the music is more than incidental…”

Or the scene where Venus Flytrap was forced to play “Another One Bites the Dust” by Queen. That was hilarious!

9 Ted 10.13.06 at 11:56 am

1. Paying rights for fair use may reflect that it’s cheaper to pay rights than to litigate over fair use, rather than that the use wasn’t fair use.

2. NB the difference between here and Kelo: in Kelo, either the homeowner or the city could use the land, but not both. But if I use a song in my documentary, I’m not preventing others from using it. That might not be enough to change one’s conclusion, but it requires a different analysis, because the interests are different.

3. This isn’t the place to discuss the economics of hold-out problems, but there’s going to be negotiation friction when the ex-post value turns out to be much greater than the ex-ante value. Ex ante, the “Love and Marriage” song-rights-holders wouldn’t have charged much for the DVD rights to “Married with Children”; after the show became a success, and the technology made it possible to market the show on DVD, the song-rights-holders can act as a holdout to demand the entire economic value of the DVD, even though their actual contribution is small. “So what?” is indeed one possible policy response, but it’s not the only one.

4. “it’s simply a case where the market cannot support the cost of the product, i.e., the demand for the shows with the original music at the price required just isn’t there.” The missing variable from this equation is the transactions costs: it’s not free to negotiate the rights. There is deadweight loss from deals not made because of these costs. We as a society might choose to incur that deadweight loss to protect competing interests in creative rights, but it’s not fair to say that it’s not there.

5. Even a Richard Epstein recognizes that there are occasions where it’s better for a mass surrender of property rights. Hundreds of years ago, one’s rights to one’s land included the skies immediately above it, an untenable position in an age of aviation travel. Rather than require the negotiation of individualized rights-of-way with millions of people, the right against overhead trespass was severely limited.

10 Jim Collins 10.13.06 at 12:29 pm

I’m having trouble in seeing what the problem is here. When the shows were originally made, the owners of the songs were compensated. As long as the song is used in show’s soundtrack only, they have already been paid.

11 Cathy 10.13.06 at 12:39 pm

“It’s not my right to tell the copyright holders what to do with their songs.”

Yes, actually it is. You tell Congress to make the law that requires them to license. After all:

“This sort of reminds me of the KELO decision.”

This is a false analogy. Congress gave copyright holders RIGHTS, not property. And part and parcel with those rights granted to the copyright holders were rights granted to the public. If Congress screwed up by giving one of these parties too many rights so that the other is disadvantaged in a way that does not “promote the progress of science and useful arts” (which appears to be the case, given the difficulty downstream users/creators have in consuming and creating new works) Congress can, and indeed must, adjust them.

12 Ima Fish 10.13.06 at 12:40 pm

“As long as the song is used in show’s soundtrack only, they have already been paid.”

The song owners provided a license for the studio to use the songs in the show for the original and repeat broadcasts. The studio has no license to copy and sell the music on DVDs.

Think of it this way, when you buy a music CD you don’t really own the music, just the plastic. You are actually buying a license to listen to the music for personal noncommerical use.

That license does not give you the right to copy that CD and sell them. That license does not give you the right play that CD at a club as a DJ. That license does not give you the right to include the music in the big budget Hollywood movie you’re producing. For each of those uses, and for many others, you have to obtain separate licenses.

13 Ima Fish 10.13.06 at 1:04 pm

“Paying rights for fair use may reflect that it’s cheaper to pay rights than to litigate over fair use, rather than that the use wasn’t fair use.”

If you can show me a case where a TV studio did not have to license copyrighted music for a sitcom based on § 107 I’d love to read it.

“NB the difference between here and Kelo: in Kelo…”

I completely agree that IP is not completely analogous to property rights. I’m a strong proponent of the argument that copyright infringement is not stealing as determined by the US Supreme Court in DOWLING v. UNITED STATES, 473 U.S. 207 (1985). Despite what the RIAA and the MPAA claims, you cannot steal what you cannot deprive.

I only said that it reminded me of KELO, i.e., the notion that some entity wants to impose what it thinks is a reasonable price onto the potential seller.

“the song-rights-holders can act as a holdout to demand the entire economic value of the DVD”

Yes, the song owner can act as a holdout, but guess what, the studio which created the show can tell them to piss off. That’s the way capitalism works. I can’t believe that overlawyered.com, of all places, is being overrun with commies!!! ;-)

“it’s not free to negotiate the rights.”

I agree, everything has a cost. Even negotiating a licensing agreement that falls through has a cost.

“Even a Richard Epstein recognizes that there are occasions where it’s better for a mass surrender of property rights.”

And, once again, I agree. However, I’m not entirely sure that a TV show is worthy of such a “mass surrender.”

Let’s look at a different example. The DVD release of the original 1966 Batman TV series is being held up and it has nothing to do with music. But the underlying issue is the same; two entities cannot come up with a deal.

Fox produced the TV series but Warner Bros owns the Batman characters. They both want the majority of the DVD sales and neither side will budge. Should the government or society step in there and force one side to give up their right to negotiate a contract?!

What about when Amalgamated Widgets cannot come up with a deal to buy its gizmos from ACME Gizmo, Inc?! Should the government and society dictate a “fair” price there too?! We’re leading to the implementation of my joke, eventually the government will decide a “fair” price for toothpaste!

14 Don 10.13.06 at 1:11 pm

And, one small point that may not be overlawyered. Just wait 20, 30, 50, or 100 years when some rights holders become untraceable due to death and inheritance complications, such that you could not even find some one to negotiate with if you wanted to.

15 Mac 10.13.06 at 2:16 pm

Don, you don’t have to wait 100 years. Magazines and newspapers would like to put their back numbers online, but they cannot find all the freelancers who walked in with an article, cashed their check for limited use, and disappeared.

16 David Nieporent 10.13.06 at 5:19 pm

Of course, part of this problem would disappear with more rational copyright terms. WKRP in Cincinnati last aired 25 years ago; most of the songs used in it are probably at least a few years older than that.

Ima Fish: the “fair use” discussion, as Ted made clear in his post, applied to documentaries, not sitcoms. The most prominent case involves Eyes on the Prize, though I’m pretty sure that it was film clips rather than songs that caused the problems.

17 Tom T. 10.13.06 at 5:34 pm

I’m frequently a dissenter here, but this time I definitely agree with Ted. A mandatory license of some sort sounds like it would be beneficial, and there is precedent in other areas of intellectual property law. Ima Fish has a good point that such an arrangement would have to be carefully cabined somehow, but I think that’s within the ability of legislative drafters.

18 J.T. Wenting 10.14.06 at 8:15 am

Fair use certainly should come into play as in many instances the fragments the problems are related to are only a few seconds long.
A character walks into a bar where the radio is playing for example, or walks past someone who’s humming a tune.

19 jb 10.14.06 at 8:45 am

David has it. Copyrights need to be of shorter duration–that’ll solve this problem. Future contracts will acount for new technology, and old contracts will become obsolete in less-than-geological time.

20 Bill Evans 10.14.06 at 9:48 am

I have to agree, a set statutory fee would seem to be the answer in a case like this. Funny part is that often the rights holder wants much more money to license it on DVD than was originally paid to license the music for the program.

On copyrights as property rights, I say fine. If that’s what the holders want. Of course you then give up your rights as copyright holders and the special protections (limited monopoly) it offers. Meanwhile states with property taxes should be overjoyed. I wonder what the property taxes would be on “That’s Life” or “Stairway to Heaven”? And since their are at least two copyrights involved, (performance and songwritng) The states could double dip. For example, “Frank Sinatra’s “That’s Life” So the label and Frank’s estate would pay property taxes on the recording, based upon the value of the recordings income potential or actual income, while Dean Kay would pay on the songwriting, and since he’s licensed the tune to more people and uses than Frank did, he would have to pay based on the value generated there.

Trust me creators/copyright holders, you don’t want to go there. And since the publishers and ASCAP get a cut, shouldn’t they have to pay too?

21 Eric Kendall 10.14.06 at 3:11 pm

The issue of music rights has come up in connection with television shows only recently–almost certainly because releasing entire TV series on video was not commercially practical before the advent of DVD.

But this exact same issue cropped up frequently several decades ago, during the early days of the “home video revolution,” in connection with theatrical features. If I recall correctly, for example, the intial video release of the popular 1981 adult animated film “Heavy Metal” was delayed for years by legal disputes over money and music rights.

In some cases, the soundracks of theatrical films were actually altered for their video release as a result of such disputes. This was done, for example, with early video releases of the John Hughes teen-comedy “Sixteen Candles” (1984). For the first versions of that film released on Beta and VHS, disputed pieces of music from the original theatrical score were replaced with other musical selections. Only in 2003 did Paramount finally release on DVD the original theatriacl version of this film with the complete and intact original musical soundtrack from 1984.

22 LAN3 10.14.06 at 7:27 pm

I just want throw this link into this mix. It’s a transcript (and link to audio) from the WNYC/NPR public radio show “On the Media,” a segment in which host Brooke Gladstone interviews the writer/producer of “Mad Hot Ballroom,” a documentary about a ballroom dance contest in New York City schools. The documentarian talks about how, in order to protect herself from copyright suits, she had to buy rights for the smallest bits of unintentionally-heard music (e.g. a cellphone ringtone-$2500 after bargaining down from $10K), and even had to pay $5000 for a “visual vocal cue” when a boy said, without singing and without music present, “Everybody dance now!” because it summons to mind a certain C+C Music Factory song with that name.

Immediately after that, there’s a segment interviewing a pair of lawyers (link to transcript, audio link available) on the topic of music found in documentaries. Though the lawyers favor enforcing different strengths of protection by copyright law, they both lean towards the idea that these are good examples of fair use, but that well-funded films are in the habit of paying off the music-owners, and music-owners are in the habit of getting paid, and when a documentarian comes along with some defensable uses but no money to execute a fair-use defense in court, it is a serious obstacle to documentarians. And furthermore, that filmmakers are pretty ignorant of the law, so paranoid are they about getting sued or billed for some trademarks appearing in their films or whatnot. (Yeah, I know trademarks are a separate set of laws, but it’s all IP to me.)

23 Ted 10.14.06 at 11:26 pm

Thanks to Louis for reminding me of the Mad Hot Ballroom experience, which we covered on Oct. 10, 2005.

24 Joe in Australia 10.15.06 at 6:56 am

Ima Fish has argued that a legislative solution to copyright rent-seeking would be bad because it would represent government-set prices. He or she says, and I agree, that this sort of thing is generally better left to the market.

In this instance we can see what the market solution has been a bad one. Shows like WKRP will never be redistributed under the existing legislative regime. It will never be worth obtaining rights from all the rights-holders, especially as the last holder to consent has the opportunity to extort a higher price than anyone else. It’s a situation where everyone has a perverse incentive to stymie the deal. It’s evident that the frictional costs of obtaining permission are even greater than the actual costs of the rights. This means that we are burying part of our culture for no good reason – nobody suggests that it would be a bad thing for people to see WKRP or to read old magazine articles. In fact, nobody argues that anyone would suffer actual loss if WKRP was shown for free. Their damage would consist of the money they would have earned if a deal could have been struck, and since no deal can in fact be struck there can be no damage.

Many people (including myself) have an instinctive feeling that intellectual property isn’t like real estate or physical goods. In one sense all property rights depend on the government, but in fact there was property in land and chattels long before intellectual property was legally recognised. Intellectual property was created to solve problems of resource allocation, and the laws have been altered on many occasions when the need became evident. This is another occasion where the need has become evident. One solution would be compulsory licensing, an arrangement that works well for similar problems in Australia and some other jurisdictions. I don’t suggest that any solution will necessarily be free from problems, just that there will be a solution that is better than the current state of affairs.

25 David Nieporent 10.15.06 at 4:57 pm

In fact, nobody argues that anyone would suffer actual loss if WKRP was shown for free.

The viewers might. :) Where can I pay not to see it?

and even had to pay $5000 for a “visual vocal cue” when a boy said, without singing and without music present, “Everybody dance now!” because it summons to mind a certain C+C Music Factory song with that name.

As a matter of law, that’s probably completely unnecessary — but (and here’s where this really ties into the Overlawyered theme) the costs of defending against an action if C+C sued are just too high to take the chance. If we had a real “loser pays” system, they could afford to do so.

26 billb 10.16.06 at 12:20 am

DavidN: We can fix this problem without going so far as loser pays. While I’m generally in favor of some lawsuit reform, I’m not generally in favor of loser pays. I’d prefer a system where both sides must put in escrow an amount equal to what they’ve paid to or committed to pay to their own legal team. The escrowed funds from the losing side would be paid to the winning side. That way we end up with a system where no side can be outspent by their opponent, but there’s no disincentive for filing either.

27 LAN3 10.16.06 at 12:58 pm

Billb, I see the benefits of the escrow system you describe, but now the defendants have an actual outlay to contend with, rather than merely the lawyer fees, which they can finance in some mutually agreeable manner. Sure, they might win, but their incentive to pay a nuisance settlement is increased.

28 Deoxy 10.16.06 at 3:44 pm

bilb,

That idea has some good feelings, but when a lawsuit can be dragged on for literally 15-20 years in som cases, having that money in escrow the whole time is basically like having to spend it, up front, for the privilege of going to the courtroom… which, if you’re the defendent is not an improvement on the current situation in many to most cases.

29 Sanity Clause 10.16.06 at 11:29 pm

It’s a shame that none of the hard-haggled proceeds of these negotiations are likely to end up with the artists who created either the music or the telecast. Is it possible for serious copyright reform to keep up with emerging technologies? Hey, if Congress can contemplate “tort reform” that would limit damage awards for pain and suffering, thereby establishing a precedent for regulating lawyers by penalizing their clients, why not set a fixed fee for republishing these things so that everyone, including the consumer, wins? Would copyright owners not benefit from a system that lets them resolve their infringement claims by applying a fixed formula in Small Claims Court ($A X B copies = C award)? No room in that equation for legal fees!

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