For those of you in the right demographic, you may recall a sketch comedy show that aired on MTV in the early 1990’s, “The State.” This critically acclaimed, but commercially unsuccessful, production featured many skits that featured popular music to construct its humor. (Marvin Gaye’s “Let’s Get It On” being one example). This background music was often critical for comedic effect. MTV was able to liberally insert copyrighted music in the show because it had generous licensing deals with various record labels at the time. These deals allowed it to use songs from music videos aired on its network for its original programming without having to pay royalties.
In no small part to the music used, The State developed a cult following during its 4-season run and many clamored for its DVD release years later. There was a major snag, however. MTV did not have the broad licensing rights necessary to include the original music for home video (e.g. DVD) reproduction. Its music license only covered television broadcasts. A simple calculation revealed that the cost to obtain licensing rights to include the original music for the DVD release would have swamped any profit from selling the DVD’s of the niche show. MTV instead opted to dub over the songs with cheap alternatives and blur any copyrighted images. The end product was a watered down version of the show that alienated fans and skits that made little sense to the newcomer.
The State is just one example of the issue of copyright and DVD releases of older films and televisions shows. Many other programs far more popular than The State have been affected, including: Saturday Night Live, In Living Color, WKRP in Cincinnati, 21 Jump Street, Grease, Captain America: The First Avenger, and even Wheel of Fortune. This clip from Wayne’s World highlights the effect of such changes:
In the theatrical release of the movie, Wayne plays the first four notes to “Stairway to Heaven,” but an employee quickly cuts him off and points to the store’s “No Stairway to Heaven” sign. The joke parodies novice musicians’ need to jam that particular song over and over in guitar shops, but never buying anything. As you can see in the video clip of the DVD release, however, Wayne’s intro of Stairway is dubbed over with a bland guitar riff. This is because Led Zeppelin refused to give permission, at any price, for the studio to use their song in the release of Wayne’s World on DVD. Without the subsequent dub over, the studio would have been infringing on Led Zeppelin’s copyright to the song. The dubbed version, however, fails to make sense without those four notes, especially to an international audience of first time viewers. Even when copyright permission is available for other works, executives have resorted to dubbing and blurs rather than pay licensing fees.
But why did executives not acquire broader licensing deals to the music used in films and television? The answer lies with the technology and markets that existed at the time creators produced their works. Executives didn’t foresee the upcoming DVD revolution and securing broader licensing rights would have cost more. Many felt it was simply an unnecessary expense years ago. The sale of VHS tapes, laser discs, and other home video media was just not that profitable. It was only with the coming of DVD’s that things changed and distributing films and TV shows for home use became a booming business. Copyright owners naturally want a slice of the profits networks and studios make in releasing DVD’s, but sometimes demand exorbitant fees for music licenses. Networks and studios instead often choose to dub over songs and blur images to avoid these fees and any potential copyright infringement. This happens either because music licensing fees would be greater than any profit on selling the DVD’s, or simply because they want to keep all of the profit.
As these cases illustrate (and anyone familiar with George’s Lucas’ foresight to acquire licensing rights to sell Star Wars merchandise), the extent of licensing rights can have a huge impact on money changing hands. Keeping this in mind, what future issues do you predict could occur with copyright, technological advances, and artistic productions?
– Ari Good, Esq.
Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.