Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.

The Artist Returns... With a Mission For His Readers

Dear readers, friends, and colleagues,

As you may have noticed, I have been absent from this blog for the better part of a month.  The reasons for this absence are myriad and range from interesting (a sudden and epic trip to Beirut, Lebanon) to uninteresting (Olympic-level laziness).  Suffice to say, I plan to make sure that such a lengthy absence occurs never again.  As things calm down over the next few weeks, I expect to return to the blog full-time and give regular updates at least once a week, starting now.

But that's not all.  Back in September, I briefly mentioned a project that I've dubbed The Artist's Bill of Rights.  The time has come to make this project a reality and friends, I want your help.

Here's the pitch: You're an artist, writer, musician, or filmmaker and you want to earn a living doing that.  But as an artrepreneur, you know you have to sweat the business stuff to make a living.  That's where the Artist's Bill of Rights can help you.  It will be a guide to all those young starving artists out there who can't afford to hire a legal team, but desperately need to know how protect themselves and their work.  And while the Bill of Rights isn't meant to be a replacement for real legal representation, it WILL at least give artists a primer on how to find the resources they need and give them a basic education in their legal rights.  When the Bill of Rights is completed, I will provide it FREE OF CHARGE here on this website.

So what do I need from you?  Two things:

(1) Just like the United States Bill of Rights, the Artist's Bill of Rights will have a list of Ten Rights that I think are the most important for artrepreneurs to know.  I've already come up with more than enough to get started, but I realize that my experience in the art world isn't sufficient.  So I'm asking every artist out there this question: what law or law-related issues do you wish you had been taught when you first started going it alone?

These questions can run the gamut from ownership of intellectual property, such as "if I'm commissioned to do a sculpture, who owns the copyright?" to payment questions such as "if a client doesn't like the work I do for them, can they withhold payment?"  They can even be business oriented questions such as "what is the best corporate form for my design business... an LLC or a sole proprietorship?"  As long as the question has a tangential relationship to the law, don't hesitate to ask me.  I will incorporate the most relevant ones into the Bill of Rights.

(2) Maybe you're not an artist, but I'll bet my paycheck that you know one.  Find him or her and direct them to this post.  We live in a precarious time, economically speaking, but there's no reason why someone with artistic talent and ambition shouldn't be able to make a living doing what they're good at just because they don't know how to protect themselves.

My hope is that The Artist's Bill of Rights will be a tool that artists - young and experienced alike - can use to level the playing field and even *gasp* make a living doing what they love without fear of poverty.

I can be contacted through the Get In Touch link at the top, or directly at thelegalartist at me dot com.

Also... did I mention that it would be free?  That's pretty important.  Tell your friends!

Filmmaker-2-Filmmaker: Tip 3 - Sweat The Business Stuff

Have you seen Night of the Living Dead?  Even if you haven't, you are probably aware of its influence.  The 1968 George Romero horror film is the progenitor of every modern zombie trope; the shambling, the flesh-eating, the brain-lust.  Dawn of the Dead, 28 Days Later, Resident Evil, World War Z, the list of imitators and followers extends to infinity.  Everything you know about zombies came from this film.  On top of that, the film is great.  It was terrifying in a way that horror films just weren't until then.  The black and white cinematography is among the most beautiful ever put on film.  And forty-four years later, the film is still teaching us... about copyright?

Before the film was released, it was originally titled Night of the Flesh Eaters, and like all movies of it s day, there was a copyright mark next to the title (that famous little © followed by a date).  But when the title was changed to Night of the Living Dead, the copyright mark was negligently removed.  Based on the copyright law of the time, the absence of the © rendered the film's copyright invalid and the movie immediately entered the public domain.  That meant that anyone could make money off the movie and Romero couldn't do anything about it.  Today, the film is sold on home video by a number of different distributors and is available to view or download free on Hulu and YouTube.

Night isn't the only movie currently in the public domain, but it's rare to see a film on that list that isn't from the 20s, 30s, and 40s.  Thankfully, that law became defunct in 1988 and today artists are no longer required to place the © mark on their work in order to maintain the copyright, although I still recommend doing it (For information on how to protect your copyright, please see my previous post on how and why to register).  Romero has since gone on to make seven million zombie films (only a slight exaggeration), and he owns the copyright to many of them.

So why am I writing about this?  First, because it's an awesome anecdote and an appropriate one for the first day of October.  Second, because it functions as a cautionary tale for every artist out there.  It's tempting to say "I'll take care of the art now and worry about the business stuff later" because as artists, that's where our passion lies.  Our instinct says that if the art is good enough, the business stuff will just fall into place on its own.  Of course, that isn't the reality.  I can attest to that from personal experience...people will try to take advantage of you, either by design or accident.  No one is going to protect your work for you, which is why you need to sweat the business stuff from the moment you begin a project until the moment you deliver it.  It may not be fun to labor over copyright applications or contracts, but that's how you prevent the world from gaining unfettered access to your work (and let's face it, if you're an artist your work isn't just a living, it is an extension of you).  To Romero, the image of zombies in a field was the most terrifying thing he could think of.  To me, it's the idea that because of a little negligence, someone else can make money off your work.

If you're an artist or a filmmaker, you need to condition yourself to take the business side seriously from the beginning.  Don't leave it to the end and certainly don't leave it entirely in the care of another.  Here are some things you should be asking yourself:

1. Is my original work registered with the U.S. Copyright Office?  If not, it should be.
2. Regardless of whether I registered my copyright, did I put ©, the date of publication, and my name on the work?  If not, I should.
3. Do I know what my value is?  If not, I should figure it out and stick by it.
4. Do I have a contract?  If not, I should have one.  It doesn't need to be long or lawyer-y.  It just has to state the terms.  It doesn't even have to be drafted by a lawyer (although it helps).
5. If I'm pitching original ideas, did I have people sign non-disclosure agreements?  I should.
6. Do I own the copyright or does my employer?  This is called work-for-hire and the general rule is that if you are hired to do a creative work for someone, the employer, not you, owns the copyright (this is a bigger issue and I'll tackle it in a future post).
7. Did I double and triple check all my papers (including papers that I had other people sign and papers that other people had me sign)?

Bottom line: pay attention to every little particular because the devil - or in this case, the zombies - are in the details.