On the closing night at the Twin Cities Film Festival this past month, I saw Time Lapse. It was a nice break from my law school studies even though the film was so darn suspenseful my eyes were shut 50% of the time.
What made it thrilling? Like most art, it was the sum of its parts: screenwriting, photography, acting, and music. Think about it—Have you ever watched a movie without a score?
Filmmakers need music, but getting a “sync license” (i.e. legal permission to use copyrighted music in sync with visual imagery) seems like a headache, an expense a filmmaker might wish to ignore. But using a copyrighted song without permission violates the legal rights given to a copyright owner and is both a civil cause of action and a federal criminal offense called “infringement.”
Legally, a film can be pulled from distribution if a judge grants an injunction against the unauthorized use of a song. Even absent a judge order, film festivals (or any venue or producer for that matter) will likely send an artist packing if copyrights are disputed. Sundance has no interest in being hauled into court over a filmmaker’s decision to dodge copyright owners. Before they will go forward with trademarked logos, plotlines, life stories, or songs, film festivals typically require a “book of permissions” (which is an industry term to describe the sometimes voluminous collection of intellectual property licensing agreements). Even if a film festival does not require a physical book, they likely will require that the filmmaker assume liability in the event of infringement.
Film is not the only area of entertainment where this legal reality matters. Recently, we saw an Australian Fringe Festival stop the unauthorized production Death of a Salesman: The Sitcom after the Arthur Miller estate announced its displeasure with the alleged “satire.” (Note: without commenting on the facts of that play and situation, generally “fair use” of a copyrighted work protects only parodies—-works that comment on the underlying work—-not new works that simply use the underlying work to poke fun at something else).
Who are the worst infringers?
In the world of copyright infringement, there are two types of offenders: fans—who want to own the things they want without paying—and also other artists. I remain shocked by how frequently artists want to use work without permission—especially since the copyright owner might not even charge anything if you just ask him or her.
Back in 2011, I attended a legal panel for filmmakers at the Disposable Film Festival in San Francisco. Many of the filmmakers were either “copyleft” (philosophical believers in the idea that creative work should be free to modify by everyone), or they held the opinion that low-budget filmmakers should not be burdened with paying musicians.
I wonder: why will we pay for lumber, but we won’t pay for music? Is it solely because we look silly trying to sneak lumber under our coats? Or has an artist’s work truly lost all value in our society? Probably not. Probably we just expect artists to get paid some other way. Except, it’s not enough. Art funding wells are shallow and overused, and not every art form enjoys the benefits of touring and merchandise sales. At some point, the presenting attorney, who was slowly losing his patience for questions about how to use music without paying, reminded the crowd, Everyone deserves to get paid.
Beyond the morality of what an artist deserves are the economic facts that taking another artist’s work without permission hurts the creative economy. Imagine: After receiving a grant, a visual artist buys paint brushes from a local arts supplier to create a new work, which she later sells as prints of over the internet. She then takes money from these sales to buy tickets to a live show or an album or more visual art, maybe to inspire her next piece of work.
But, if someone downloads an image of her work to print at home without paying, committing copyright infringement, they are stripping the artist of profits she would have made selling the print—-and creating negative ripples throughout the arts economy. (On the other hand, see Creative Commons licenses.)
How to do the right thing
I’m optimistic fans will figure things out; I believe everyone wants their favorite band to make money. The NPD Group, a market research firm, reports that peer-to-peer file sharing and CD burning is noticeably declining with the increase of ad-supported “free, legal music streaming services.” And as businesses develop more ethical models (like IndieFlix), I want to believe the fans will migrate.
But what about artist-infringers? Current systems for getting permission may be annoying, but if we work for better ones rather than ignoring them, then the more accessible options will come. Using songs in a theater, for example, is already easier than you think. If you have a season of multiple productions, and are likely to use more than five songs, ASCAP recommends you purchase a blanket license from them and get access to their gigantic music collection. The exact price you pay is negotiable, as that depends on a number of factors like the number of speakers, but prices do start around $230 annually.
Already groups like Limelight (“designed by musicians for musicians”) help bands clear cover songs. For $15, this group will research a song’s copyrights, and get you a “mechanical license” i.e. the right to cover the song.
I expect businesses to pop up to serve other artistic disciplines like the visual arts, but until then I urge everyone to remember that copying and pasting harms the creative economy—-which ultimately makes your own artistic practice harder. But, in the end, copyright law is not just about money, it is about an artist’s control over his or her work. Something I’m sure all artists understand.
Disclaimer: Nothing contained in this article represents the opinions or views of Springboard for the Arts, MinnesotaPlaylist.com, or any other organization with which the author is directly, indirectly, or otherwise involved. This is solely the opinion (not legal advice) of Sarah A. Howes, a not-yet-a-lawyer law student.