Before I start, let me say that it's really nice to be able to talk with a movie creator about copyright issues. It is very rare that we in the free culture space get to hear what creators* think about copyright, probably largely because few creators deal with copyright, leaving it instead to their lawyers. If you know of other creators that would like to chat with free culture people, please let them know about this list.
* When I say "creators" here, I mean people creating financially substantial artistic works. We are all creators of some type, posting to blogs and mailing lists with our ideas and writing software and papers. I wanted to speak of a particular type of creator that we don't hear from often. On Sat, Sep 6, 2008 at 2:13 PM, Nina Paley <[EMAIL PROTECTED]> wrote: > Hi Denver, > >> b) it is illegal to distribute the audio for free whether it is >> combined with the video or not. > > Not free, but much less than synched audio. The "mechanical license," which > applies to audio CDs, audioDVDs, tapes, records, etc - any audio-only > format, without accompanying video - is regulated by the US government. It > is currently $.091 cents per song. This is fine if you're only distributing in the US. But if you want to get your movie out to the rest of the world, it might be more trouble. I don't know much about mechanical royalties in other countries, but it seems like they're usually a percentage of the retail price [3]. Furthermore, I'm not sure if they're compulsory. I'd be happy to hear how it works in other countries if you know. > To distribute the audio pre-combined with the video, a "synch license" is > required. Synch licenses are not regulated, copyright holders can demand > anything, and deny permission for any reason, or no reason at all. Synch > licensing is currently a severe obstruction to speech. Many films have not > been made or released because of them. Other films have been mangled. > > I would have to pay about $1 a disc for the mechanical license to make the > CD. It's a pain, but it's not prohibitive. The synch rights are absolutely, > positively prohibitive. As long as I pay that mechanical license, I can > release the CD any way I want to, with or without DRM. I would choose not > to. In general, wouldn't you also have to re-record each song that you use? From what I understand, a mechanical license only grants you the right to make a recording of a work, not the right to copy someone else's recording. I realize this wouldn't be an issue for you since the recording you're using are public domain; you just need the mechanical license for the composition. But to understand how likely filmmakers are to use the insyncherator, it would be good to know if this would be another obstacle to using music in films. >> To alleviate this, you could buy CDs >> off-the-shelf and distribute them with your movie; this will be legal >> thanks to first-sale doctrine [1], confirmed most recently by Vernor v >> Autodesk [2]. Even this way, it's painful and CDs may cost too much >> to make reselling worthwhile. > > What shelf? I'd be making both the CD and the DVD. Do you mean I'd have to > first sell the CD back to myself, in order to re-sell it with the DVD? Sorry, this was a result of my misunderstanding with mechnical licenses. One way of doing it would be to buy CDs and re-sell them. The way you're suggesting is to make use your own recordings and distribute those, which obviously doesn't require you to buy original CDs. > I > think I could just sell both. (In fact I'm wondering how far I could push it > - could I put them in the same DVD wallet? On the CD side of the package, > mark "official soundtrack, price $1.01," and on the DVD side mark "video > $18.99" so the two together would effectively be $20? Is there a lawyer in > the house?) This brings up an interesting question: how hard do you want it to be for people to play your movie? If distributed on two separate pieces of physical media, a person would have to have two optical drives or would have to copy one of the discs to their hard drive. Both are fairly prohibitive since people tend to want instant gratification with their movies. Another option is to distribute both the audio and video on the DVD, but in separate locations on the DVD. However, this still wouldn't let you play it with a standard DVD player. > "Sita" is a nice poster child for what's wrong with synch licenses, because > a. the songs in question should be in the Public Domain already Yep, you've mentioned it before that retroactive copyright term extension is a bad idea. I've blogged about it myself: http://ossguy.com/?p=35. > b. I already tried playing nice with the publishers, approaching them > through an experienced law firm, and have the lawyer's itemized invoices to > prove it > c. the amounts the publishers want license the rights are ridiculous, > exceeding the budget of the entire film, even though they know it's an > ultra-low-budget project As you've also mentioned, the recording companies couldn't care less if you can or can't distribute your film. I believe the solution to this is to cut the recording companies out of the distribution chain. Creators must "Just say no" to recording companies and retain their own copyrights instead. Unfortunately, there is still a widely-held belief among musicians that life will be great once they get signed with a recording company. We have to fix that. Creators would be more open about having people use their work. Hopefully many of them would choose to distribute their content under libre licenses such as Creative Commons Attribution, allowing filmmakers to use their work without even needing to ask. > I'm also in the unique position of being the sole producer/director/owner of > the film. Even indie films usually have investors, financiers and sponsors > from various sources, that require the project to comply with certain > standards and practices. But I don't have to answer to anyone. That's quite fortunate. You can be much more risky when it comes to these sorts of legal issues, which is often what is needed when faced with a decision to can the film or hope it qualifies as fair use. Denver 3. http://books.google.ca/books?id=SBgFUjjzOu4C&pg=PA58&lpg=PA58&dq=compulsory+mechanical+rights+countries&source=web&ots=_hAp_E_UuJ&sig=F3QRG_75Yig_2iNg3N5fMefKCsw&hl=en&sa=X&oi=book_result&resnum=6&ct=result _______________________________________________ Discuss mailing list [email protected] http://freeculture.org/cgi-bin/mailman/listinfo/discuss
