Thursday, January 5, 2012

IT HADN'T BEEN YOU:  Linda Holmes would like a disclaimer system in place to let us know when music has been replaced in streaming and dvd releases of tv shows and films because of rights restrictions. While watching When Harry Met Sally via Amazon digital download, she notes with regret how the ending is butchered:
We briefly reunite with the original soundtrack for Connick's plinking piano on "But Not For Me" and a quiet "Isn't It Romantic?" And then back to "But Not For Me," and then ... and then in the movie, there is a climactic moment when Frank Sinatra kicks in: "It had to be you." This is the moment that drives the entire concluding sequence of the film. Frank Sinatra is it. The alpha and the omega of love in New York on New Year's Eve, and instead of freaking Frank Sinatra singing a standard, the digital download gives you ... generic saxophone noodling.

It's pretty much an entirely different sequence, without any of the sense of inevitability and destiny — not to mention, you know, romance — that you get from Frank Sinatra kicking in.


  1. The Pathetic Earthling10:34 AM

    That's dreadful.

  2. As I noted in a Twitter exchange with Linda:

    1.  I own several DVD's (Everwood and Northern Exposure at a minimum) that contain a notation (admittedly, often in small type on the back of the package) that certain music has been replaced for the DVD release.
    2.  The solution here would seem to be a mandatory license setup sort of like they have for radio broadcast of songs.  In most cases, this isn't an "orphan works" scenario, where no one can be sure who owns the copyright in the song, but a scenario where the copyright owner wants unreasonably large sums of money.  I'm a strong believer that copyright owners should have at least some control over where their copyrighted material can be used, but if they consented to it being used in the TV show or film, they shouldn't be allowed to revoke at will.

  3. The Northern Exposure music replacement is a real downer for me.  I just got season six for Christmas, and they completely changed the song that plays at the end of The Quest when Joel is on the Staten Island Ferry, and I do. not. like. the song they used instead of the one that originally aired.  Blech.

  4. Goghaway11:44 AM

    This is nowhere near as jarring, since that Sinatra song really makes that sequence, but I remembered being seriously bummed that Pavement's "Spit on Stranger" was yanked from How I Met Your Mother. Partly because of how much I love the song, but also...spoilers, I guess?

    Pavement's version was used way back in the first season when Ted gets together with Victoria, during their first kiss. This season, she reappeared and their goodbye scene felt especially bittersweet because they used a really lovely Kathryn Williams cover of the same song. It was just a nice subtle coda for their relationship that I don't think anyone missed (except for Pavement fans), but Linda's right- I can't imagine that big scene in Harry Met Sally with placeholder saxophone music. Ugh.

  5. I went back to rewatch Matt Saracen driving out of Dillon on Netflix, and "Don't Think Twice, It's All Right" was no longer present. I would pay an extra 99 cents for that.

  6. <span>The sax is an improvement: In my version of the When Harry Met Sally DVD, they replaced the Sinatra with Salt 'n Peppa's "Push It." It really changed the feel of the final scene.</span>

  7. My apologies.  "Pepa."

  8. Not to threadjack, but my refernce to Salt-N-Pepa made me think of one of my favorite SNL monologues, from Patrick Stewart in the early 90s:

    This is also the episode that had the awesome "Philadelphia action figures" commercial.

  9. isaac_spaceman12:57 PM

    They're not revoking consent.  They're withholding consent to use of their property in a different medium without what they believe to be adequate compensation.  Linda Holmes says that When Harry Met Sally is a worse movie -- a much worse movie -- without the contribution of an independent artist's property (Frank Sinatra's version of "It Had to Be You").  MGM and whoever owns that performance (let's say the Sinatra estate, though I don't know) can negotiate whatever price they want for that song, bearing in mind both the general market price for the use of that song (in commercials; in lousy movies; etc.) and the specific value of its use in that particular movie. 

    One might argue that the Sinatra estate has a bit of a monopolist's advantage in this negotiation, but I would disagree.  If the estate held out for a monopoly rent, MGM could probably substitute away to a different, but nearly-as-good, alternative at a market price, maybe a Buble cover or a Tony Bennett song with the same sentiment.  Or they could go with alternatives ranging from slightly to much cheaper, probably with corresponding reduction in quality.  So the Sinatra estate probably would not be likely to hold out for a greater license fee than it ordinarily charges for that work. 

    The real advantage here is for MGM.  If people are not aware that MGM has substituted away from the original music, they will not be aware of the reduction in quality of MGM's overall product.  So Linda Holmes's solution -- mandated disclosure -- would render MGM unable to cheat its customers, so to speak, and would create a greater incentive for MGM to negotiate a license with the Sinatra estate.  It's a solution to one particular transaction cost (the lack of consumer knowledge) that inhibits what would otherwise be a mutually beneficial transaction.  Of course, free-market hard-liners would argue that the cost of the disclosure regulation exceeds the benefit it confers and that the market itself, through the good offices of people like Linda Holmes herself, will take care of the disclosure that Holmes advocates.  Both points are debatable, and I mean that literally. 

    Linda Holmes, I'm sure, could rehearse these arguments herself, but would do so on pain of being reminded of the life she left behind when she ditched law and policy for the military-industrial-entertainment complex. 

    In any event, I gather this problem exists only for works created before the rise of the secondary market, since both sides of the transaction presumably are much clearer now about which media are included in the license.  I don't see any value in forcing artists into a "license all media or license none" stance. 

  10. Watts1:31 PM

    When it really gets my blood to boiling is when it's not just entertainment but something of historical/educational value, like the whole "Eyes on the Prize" shenanigans.

  11. It's not just the secondary market--apparently, under the license that they have with whoever owns the copyright on the Sinatra estate, they have the right to use it in the film, in video release of the film, in TV broadcast of the film, but not in online streaming of the film.  Given when the license was executed, it's highly unlikely that there's a specific carve-out for online streaming/downloading (those technologies didn't exist) so it's probably a question of breadth of the license being ambiguous.  Of course, if someone (e.g., Metallica) wants a specific contractual bar against the music ever being allowed to appear in streaming content, I'd enforce that--it's just in instances where the contract couldn't envision these secondary uses, there shouldn't be a monopoly.

    And sometimes, there's no way around it--for instance, shows and films that specifically refer to a piece of music in the dialogue can be held up without any replacement being available, though that's been ignored in the past--for instance, a joke in Wayne's World with a sign that said "No Stairway" in guitar store after Wayne tested a guitar was left in the video release even though the music cue was changed after Zeppelin sued for the use of the Stairway to Heaven riff without their consent.

  12. Eyes on The Prize is even more of a mess because it's not just music rights, it's footage rights and tracking down the copyright owner on each and every piece of the footage is nigh unto impossible, and most reputable video companies don't want to take the risk if they can't get a clearing opinion.  (Also, right of publicity comes into play there, since the people being photographed are unlikely to have signed releases.)

    A few years back, my Mom was cleaning out the library where she worked and they had a complete VHS set of Eyes on the Prize--I told her to not discard or just dump at the used bookstore, not only because it's still great material, but because it has considerable worth on the secondary market.

  13. Watts2:55 PM

    Right, it's not just music in that case, but telling that story without so much of the music that was seminal to the movement and the era...

  14. isaac_spaceman3:47 PM

    Call me crazy, but I'd prefer that the presumption be in favor of the copyright owner, rather than the person who wants to use the copyright.  I have no problem holding up the streaming rights or making "no stairway" nonsensical until the filmmaker agrees to pay a negotiated price for the piece.  Compulsory licensing is for situations where you can't really have individual negotiations with each separate copyright holder over each work.  There's no need for it where two informed parties are capable of negotiating and have negotiated. 

  15. Paul Tabachneck3:55 PM

    The season opener of S2 of Sports Night on Netflix is Neil Finnless -- makes me glad I kept my DVDs.

  16. I'm in favor of that for negotiations of first impression.  It's just for scenarios where the alternate distribution wasn't (and especially couldn't have been) envisioned in the original agreement, or where there's archaic language used--if there's a 1982 license between the parties which specifically allows use on "videocassette" distribution, my inclination would be that that would cover usage on not just videocassettes, but DVDs and streaming, provided that the remaining terms are covered.

  17. Squid4:00 PM

    If the distinction is ever made under the law, I volunteer to sit on the committee that decides which productions are historical/educational and which are crap.

  18. isaac_spaceman4:02 PM

    Well, why is it shenanigans?  If you're Sweet Honey in the Rock, and you sang "Eyes on the Prize," and your voices were what played over the title card for Eyes on the Prize, and somebody made the point (implicitly or explicitly) that your voices were seminal to the movement and the era, and then you looked on Amazon and found out that somebody was selling DVDs of Eyes on the Prize for $59.00 or streaming episodes of Eyes on the Prize for $1.99 per, and you clicked on the preview and there's your voice, right there, mightn't you say, "we'll do this for free if everybody does it for free, but if anybody's getting paid on this re-release, wewant to get a small royalty that fairly reflects our contribution to the project"? 

    Because I don't think the right argument is "we couldn't pay the rights owner because it would have been hard for us to track down all the rights owners -- we flat-out used too much third-party copyrighted material." 

  19. Watts4:42 PM

    I give. You've LAWYERED me.

  20. Becca4:48 PM

    <span>Music licensing is such a HUGE nightmare, and this is just one teensy example. Most companies want to know in advance what media you're clearing for (they generally require you to be as specific as possible--TV, DVD, in flight, web, etc), what market (domestic, domestic and Canada, worldwide), and for how long (2 years, 5, 10, and the dreaded In Perpetuity). Since it's impossible to determine all the ways in which your project will be distributed in the coming years, you have to reapproach the owners for a new license every time you want to redistribute your project. Music companies generally take MONTHS to review licensing requests, and almost always want Most Favored Nation status, so everyone gets a boatload of money. The whole thing is cost prohibitive, and it becomes more productive to simply replace the track and distribute without. If the music companies don't want to do business, that's fine. If they want an absurd amount of money to do business, they can keep their precious track, and not get any money. That's fine, too. 

  21. Richard Cobeen6:59 PM

    The worst is all the changes made to WKRP.  Ruins the show.

  22. Hannah Lee8:01 PM

    I don't have a good answer to the licensing issues (not a lawyer) buy I'm with Linda Holmes that some kind of huge disclaimer should be presented on the product (DVD, streaming, whatever) prior to purchase, so people can know what they are, and aren't getting before they put their money down.

    Sports Night, Quantum Leap, WKRP, Northern Exposure, etc...all of them are different works without the original music.  I remember music changes gutting emotional moments in Quantum Leap particularly, and it was especially jarring because I didn't know it was coming.  If I ever rewatch, I still choose the thready old VHS tapes instead of the shiny S1 DVDs because of that (and never bought the subsequent seasons, because the original music was so integral to the feel of the show)  I'd love to own a copy of China Beach, but it wouldn't be the same without the original music.

    These shows' creative teams went to a great deal of trouble to choose the exact right music for a scene, and that original music is what we have in our memories if we've seen the original piece.  Anything else is, well, less, and should be so noted in the marketing of the product.  Otherwise, it would be like selling chocolate chip cookies and failing to note that you've replaced all the chocolate chips with raisins.  Raisins aren't bad, they just arent chocolate chips.

    (And George Lucas should really stop tinkering with Star Wars already.)

  23. isaac_spaceman9:41 PM

    Matt -- I don't agree.  First of all, a DVD is not a videocassette.  Second, if nobody foresaw the market in new technologies, then the parties didn't negotiate a license based on the expectation of the exploitation of that market.  And an artist could have perfectly valid reasons to license its product for some technologies and not others.  One can certainly imagine a world in which everything in the world is streaming, and an artist is paid a greater royalty for streaming audio of a song (of which it is the sole owner) than for a segment of a movie in which the song appears (of which the movie studio gets the lion's share of the royalty), but where even indifferent streaming consumers might be funneled toward the video rather than the audio version of the song for various reasons (partnership agreements; better SEO; random luck).  The artist might want to prevent streaming because it doesn't want the licensed-to-studio version of its own song competing with the audio-only.  In your world, tough shit, musician, you were the dummy who didn't think we'd invent Spotify.  Or the artist might legitimately negotiate a higher royalty for streaming or a prohibition on clip-streaming or whatever. 

    So maybe MGM didn't anticipate DVDs or streaming.  MGM is in the business (or was in the business, when MGM was in business, before the new MGM got in the business) of looking for new technologies to exploit.  It's the most obvious thing in the world to minimize transaction costs by giving MGM, not idiot musicians, the incentive to write better contract provisions that anticipate future technologies. 

  24. And re Eyes on the Prize, we're not talking about people whose music was used in the documentary in a Sinatra-like way - we're talking about people who were in the movement (i.e. Sweet Honey in the Rock's founder was one of the SNCC Freedom Singers) not being shafted in the commercialization of the civil rights movement. 

    Let me take this opportunity to link to the Freedom Singers at the White House, which makes me cry every time.