Permission Fees for Use of Copyrighted Material Can Be a Big Deal

by John Aquino on 05/24/12

 

The need to get permissions to use copyrighted material in a book or film can sink the project. I know. It happened to me.

I was thinking of my own experience when reading an article in The New York Times May 1, 2012 about the copyright licensing problems that have befallen a documentary about the group of studio musicians from the 1960s known as “The Wrecking Crew.”

They recorded many of the songs by the Beach Boys, the Mamas and the Papas, and Sonny and Cher and did so without official credit or fanfare. Most of these groups could play their own instruments, and they did in live concerts. But the demands of recording four songs a day with multiple takes was so demanding that professional studio musicians were often employed. Some of the members of “The Wrecking Crew,” like Glen Campbell, went onto to solo careers.

Until the documentary was made, mostly with his own money by Denny Tedesco, the son of one of the group, the behind-the-scenes story of this group was understandably unknown. Tedesco thought it is important to document the work of these individuals who created the wonderful sounds that formed an important part of the musical culture of the late twentieth century.

But Tedesco is having trouble getting permission from all of the copyright holders to play portions of the recorded songs in the film. None of “The Wrecking Crew” has any interest in any of the copyrights of the songs. And in Tedesco’s using enough of the songs for them to be recognized, the dollar amounts of the permission fees kept rising and rising. The movie was shown at a film festival in 2008, but it has not yet been released.

Tedesco says his budget for the film was $1.5 million. When he asked one record label for a quote on permission fees, he was told it would be $2.5 million! He has worked the fees down but as of this writing says he still has to raise over $100,000 to pay off all of the 132 music cues in the film.

Some have expressed amazement at Tedesco’s dilemma. The music labels should be grateful for the publicity and give permission for almost nothing in thanks for the work these musicians did on the songs, for which the music labels have made millions, people say. But music companies are suffering as recording sales have declined and they have come to rely on licensing fees to supplement their revenues. Besides, the producers who actually worked on the recordings with The Wrecking Crew are mostly long retired or dead. Sentiment does not have a long life span in the entertainment business.

The whole situation reminds me of my first full-length book manuscript. I was then editor of Music Educators Journal for the Music Educators National Conference. I wrote number of articles about Broadway musicals for the magazine, and I was contacted by an educational publisher about writing a book on musical theatre. It was to be for their music series, and they wanted lots and lots of musical examples.

This was in 1980, and it was the fulfillment of one of my dearest wishes. I labored on the book and produced a 300-page manuscript with over 100 music examples. I turned the manuscript in, and then the publisher casually mentioned, “You know, according to the contract, you are responsible for getting permission to use the music examples.”

I was young, and I just didn’t know this. The publisher never told me and acted as if it was not big deal. I went about writing letters and getting permissions.

But times were changing. The U.S. Copyright Law was revised in 1976. The environment was clearly one in which music publishers felt that they had been robbed for years by people using copyrighted material without permission under a vague concept of fair use and now they were going to get the moneys they deserved. One publisher actually told me this at a conference, although he actually said, "We're going to bleed these people!".

When I totaled all of the quotes for permission I received, the total was over $8,000. To paraphrase Dudley Moore in the movie Arthur, this was when $8,000 was a lot of money. For some of us, it still is. It was for the educational publisher, who had probably budgeted all of $12 for permission fees. The publisher didn't know the times were changing.

Some copyright holders were charging $50 a bar, some $100, and to show the melody line I was using at least four and sometimes eight barfs. I contacted the publisher and told them, and they were dumbstruck. Did you tell them we are an educational publisher?, they asked me. I had, and it didn’t matter. Book publishing is a commercial enterprise since books are sold, even if the use will be educational. The publisher made a few calls to see if they could get the fees down, and failed.

The publisher put the blame on me. Since I was responsible for the permission fees, and since I evidently couldn’t afford them, they were forced to cancel the book contract.

As an author, the husband of an author, and as an attorney, I always make sure the issue of fees for copyrighted material is dealt with in the contract.

(I have worked a lot with scholar/authors, and they are always surprised by this. "Why would someone charge me money to use a photograph of a manuscript that's 800 years old?" The answer is, "Because they own the photograph and therefore the copyright of the photograph and you don't. If you want to break in to the library and take your own photograph of the manuscipt, then you'll own the copyright of the photo. I'll drive you there, but I'll wait in the car.")

 If a publisher wants lots of photos or music examples, then the publisher should  provide a budget for the use of this material.

Too late for my book. I have used portions of it for other projects. I have contacted other publishers. But the cost of permissions to use this volume of copyrighted material is still a huge issue. And so the book sits in my files.

I hope Tedesco finds the money. 

Copyright  2012 by John T. Aquino. This article does not constitute a legal opinion and is intended solely for educational purposes