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Record companies are suing the "Ellen Show" over use of music without paying the licensing fees. The Ellen Show folks said they didn't "roll that way." I believe this is the obvious extension of the mindset that music should be free, as espoused by the illegal downloaders. Sit tight, kids, the fun is just beginning. Just think, you'll be able to tell your grandchildren about the time when people got paid to create music.


Read about it here:
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/09/10/entertainment/e145341D38.DTL

Yep,

Just one more example of how people expect to get what they want. I wonder if everyone can play and run the "Ellen" show for free with no commercial revenue?

MAB

Quite interesting. The overall goal of American Idol is to make money for someone - whether through advertising on the show, record royalties and management fees of the winners, whatever - and now one of their judges is the star of a show that doesn't pay the very lucrative royalties of TV performances.

But isn't it the station airing the show that has to pay the royalty? Like the individual radio station has to pay?

What does that even mean? And whatever it means, why would you say it to a lawyer?

Scott

A "slip snd fall" lawyer sure would understand, or make up a way to understand.

It's not the royalty for the copyright holders...that gets paid by the station...it's the license for the recording.

Typical Ellen ......

Tom

"We don't roll like that..." was most likely meant to be read by the show's core audience, who were probably seen by the producers as being anti-establishment. It was an probably act of "thumbing their noses" at the labels that was intended to portray themselves as "revolutionary," and "cutting-edge," rather than as rich television executives who want to have their way regardless of law or convention.

I think it's a shot across the bow of intellectual rights. Interestingly, it's happening within a venue that thrives on IR compensation. It's sort of cannibalistic, perhaps more anti-capitalist than a business decision. Pull the system down from within. Anyway, that's my take on it.

Copyright Law protects the holder of the copyright so if the people don't want to pay up for use of the music they will lose in court. You would think the producers of this show would know they need a license for the use of music but maybe they thought they could get away with it. The licenes(s) will cost a lot less than the fines if imposed. What is it, $10,000.00 per infraction? Ouch!

Mike:

1.) Would it matter if the clips are less than 30 seconds?

2.) So the TV network is probably paying ASCAP/BMI fees, but this is for use of the copyrighted "recordings" and needs a different type license?

Why would this be licensed any differently than a radio station playing a song?

Kevin

I'm not a lawyer. I do know you can't use a 10 second Beatle's clip in a commercial. Perhaps the labels are complaining that the dance segment was a large feature of the show and the music wasn't incidental but often the main reason for the segment.

Yes, if you own the recording of a song you are due the license fee. That's what all those libraries are about...you can license recordings of Beethoven, for example.

Again, these days people default on the side of social ownership of art. If that were the case, I guess we shouldn't teach about Michaelangelo, just the statue of David. Art exists apart from the artist only after the fact of creation. Folks extrapolate that to mean art exists apart from its creation. People are denying the creator. It's a logical extension in a society that denies the Creator.

Maybe I'm reading it wrong, but what about this bit:



So... the labels won't license music for daytime television, but they do want to be paid when daytime television uses the music they could have licensed?

Weird business model!

Yes, because it was stolen. If I make a widget and refuse to sell it at Walmart, then Walmart gets some of my widgets and sells them, I guess that's all right, because I'm wrong to insist who can sell my widget? Common business model. You have to buy a new Ford from a Ford dealership. You have to buy Radio Shack radios at a Radio Shack. You have to buy Starbuck's Coffee from a licensed Starbuck's dealer. You have to buy Craftsman Tools at a Sears.

Try using a photograph by Annie Liebowiz for the cover of your cd without paying the license. She (or her creditors ) won't let you. And if you use it, you'll get sued for the license and possibly for punitive damages.

Try using a Thomas Kinkade painting for a satanic heavy metal cd cover. He won't let you. You'll get sued for it, even though he wouldn't have let you even if you asked.

It is a VERY common business model. One which makes sense, except to the social ownership of art crowd.

This case better turn out the right way. (Which I'm sure it will because it is so blatant.) Or else kiss licensing away.

I still can't quite grasp the whole "..we don't roll that way." That's like a defendant saying to a judge, "your honor I understand the law says that I can not break into that woman's house but I just don't roll that way."

I would venture to guess on better than even money that no one in position of "power" actually said that. That is just what the plaintiff's said in their suit. It doesn't make it true.

Kevin

You are very correct. It doesn't make it true. God knows I've seen enough crap in court documents over the last year that isn't true.
But have you seen some of these producers on those shows? I can see them saying that.... lol

I still hope this one turns out the right way. Pretty high profile. Both in the show being sued and in the music that she plays at all times....

Guys,

This is one more part of the "I should be able to use what I want, when I want, how I want it, and pay nothing for it" attitude. This is consiously being done. It is part of an overall strategy. You will have people like Ellen speaking out and acting as if they are 'wounded" by the evil record companies. It is designed to little by little do completely away with liscencing of any kind. Of course they will fircely protect their rights.
When the music business was being destroyed by illegal downloading, very few in the other mediums, television, motion pictures, did a thing. They were fine with it because if they didn't have to liscence music, that drops a bunch of money they have to pay out. Their production costs are cheaper and they can do what they want to.
When movies started getting streamed and illegally downloaded, they wen't crazy. Last year, when the writers went on strike partly because of streaming television shows without paying the writers, they screamed.
This is not isolated, nor is it anything you can ever give the benefit of the doubt on. These people know exactly what they are doing. They are doing it in Washington, they are doing it in every country and every state. The goal is to do away with all liscencing, period.
This is what is coming. And you will also see the National Endowment for the Arts coming against you also. When I said stay away from government involvement, this is all part of what I was talking about.
Ellen is just one part of the fight. Look for other celebrtities to come out in the same manner. You won't be able to connect the dots at first. Just pay attention.

MAB

I don't understand. Don't the stations pay license fees to cover each "spin" (performance) to the PROs and then the PROs pay the publishers and writers?

I think it just means "we aren't going to roll over and let you win." i.e. "we don't just roll over when people come at us with lawsuits." i.e. "we don't roll that way."

I could be wrong. Ellen is a homosexual. I don't roll that way either.

Yes, the pros pay the songwriters who get paid...for the songs. This is for the recordings.

When the Beatles recorded "Matchbox," a Carl Perkins song. Carl Perkins got paid for the songwriting. If a tv show or movie or commercial etc. wants to use that recording to enhance that film, tv show, or commercial etc...as opposed to a radio music show which is only playing the songs themselves...they have to secure a license from the holder of the Beatles' licensing rights to do that.

If the Ellen Show can just use any recording they want, then it's a short jump until an ad agency can take one of your recordings that might be on youtube or soundclick or on your myspace site and use it. Can't you see it now? McDonald's uses your recordings and pays you nothing, now you are forced to fight McDonald's in court. Fat chance on winning that, they'd bury you in legal fees with their army of lawyers. Or, worse yet, the KKK does a radio commercial and uses your recording. Suddenly, no one wants to ever use or even listen to your recording, but you can do nothing because anyone can just use your recording without your permission.

But that's just stuff that would happen in the interim. As MAB says, just connect the dots.

Sure does seem like the TV Studio is in the wrong here and will need to pay up. I read somewhere that the record companies would have turned the show down even if they had asked to use the sound recordings (and compensated them). Is this true?

Kevin

I'm sure it's true. Otherwise David Leatherman would bounce old Paul Schaeffer and just play Beatles and Stones records

When's the last time you heard a major hit being played on a soap opera, or Oprah? And, I don't mean some band playing the song, but the actual hit recording. If you hear it played, somebody paid. So far, at least. Stay tuned.

Does Ellen have a "house" band?

Kevin

Interesting.

I can only speak from an Oz perspective, I'd say it would be similar.

Is Ellen live, or live to tape ? Over this way, anything which is live, is covered by blanket licencing. Cue sheets are filed, for play on and plays offs, incidental music etc, and the copyright holder is paid from the blanket licencing fee. They can use anything they like, as it is under the terms of their licencing. And everyone gets paid.

Ellen is a real smart woman. It would be unusual for her production company to overlook their legal obligations.

cheers, niteshift

Not if you are looking at it as a way to lower your production costs. And to start a trend that in their opinions will take a majority opinion that music should be free. This stuff never starts by one thing. It is incremental. This didn't start that way.

It started with bands giving away music for free because their income streams were more from merchandising and live shows. Since the artists were usually the writers in rock, they were getting their piece any way. But do this for a few years and it becomes expected. Generations start file sharing, burning CDs. etc.

Then they start ripping movies, television. Each side of the industry only cares about itself. It never looks at the bigger picture. So what would be next?

First of all belittle the people who try and fight the fight. Record companies and large rock stars are made to look like spoiled children wanting to sue some little kid for downloading. Make them the villans and build up sympathy for the illegals.

Then in various places around the world, elect leaders who not only look the other way, but encourage it. also elect leaders who play into the entitlement mentality.

Next, start easing celebrities who actually advocate that point of view. Develop a grass roots campaign of "music should be free." SO that the public sympathizes with it, and push writers right out of the picture. Enormous supply, enormous demand. But you have to go through certain channels to get anything out there in a wide variety.

That is how I would do it.

MAB

It won't lower the production cost. It is a cost borne by the network. I don't know the particulars, but there are 2 sides to every story.

Add to that, the audio budget will be less than 5%, and it's simply not worth doing folks wrong from a practical or economic point of view.

The music is not used for free. I think you'll find it is being used under blanket licence.

Wether or not that's the case, it would be wrong to take a stand point on an accusation alone, without knowing both sides of the arguement.

The article states..... The suit calls the segment and the music played by the show's own disc jockey "signature elements of the show."

That's where the contention lies. "signiture element" as opposed to "incidental music", and hence a different price tag, and rights of use.

cheers, niteshift

It doesn't make much sense to me. I get why they are angry about having their music "stolen"...

I don't get why they wouldn't want to license music for day time television in the first place. That's the bit I found odd. Perhaps I misunderstood, but that was the impression I got from the article.

Ellen is described as... "The Ellen DeGeneres Show is an hour-long, five-days-a-week, talk-variety show. " from www.ellen.warnerbros.com/ In other words, it is classified as news and current affairs. There is no physical way a song can be licenced in the time frames to produce the show. Secondly, there is nothing to sync, as the music is faded up and down from the database, and the results either broadcast, or put live to tape. It would also be classified as "non-scripted", and the producers would decide, almost on the day, which music is going to be pulled up over the fade ins and outs.

I think the lawsuit maybe trying to stretch definitions here, but when people get desperate, strange things happen.

cheers, niteshift

PS -based on the assumption that US and AUS regulations are similar.

Niteshift,

We have been hearing this side of the argument. For about 12-15 years now. And talk radio and most news programs DO liscence indivdual songs. They clear it before they use it at all. You are giving benefit of the doubt when it has repeatedly been told to you that they are not going to pay. You guys are looking at this very wrong. You are thinking that these are people that think rules apply to them. They do not. And they have helped create an entire generation that believe just like they do.
We'll see. I ask that you watch and see what happens. I believe this will be the first and you will see a half dozen others pop up in the next few months doing the same thing. This did not start all at once. It started incrementally.
And yes, nightshift, it DOES lower production costs. i had a friend who had a Shania Twain cut on a major television show called Desperate Housewives. One of the complaints was how expensive it was getting to liscence songs for television shows and movies. They are looking for ANY way to cut production costs. Like I said, these discussions have been going on for a long time. This is nothing new. You are just seeing it now.
And why are they doing it? What is their rationale? They will tell you "exposure" that the songs get and thereby the artists will get.You can die of exposure. And you are trying to apply your logic to someone who simply believe totally differently than you do.

MAB

The difference is, "Desperate Housewives" is a scripted show. There's a huge difference. It's scripted drama.

Broadcasters may broadcast any music live at any time, as long as they pay their dues, and file their cue sheets. There is no savings, in using one song or ten, for live/live to tape shows. There's nothing shady about it, it's simply a matter of practicality.

What next ? Radio stations having to licence every individual song ?

I guess the arguement is, wether Ellen is a "live" show, or is on that grey area of being a "produced" show.

I don't know the answer ot that, but there lies the differnce, and the arguement that ensues.

cheers, niteshift

Ah, I thought there was something strange here....

From the article......

Plaintiffs include Arista Music, Atlantic Recording Corp., Capitol Records, Motown Record Company, Sony Music Entertainment, Virgin Records America and Warner Bros. Records.

Ellen comes out of Warner Bros Studios. Huh ? There's also no PRO involvement here. The collection agency which sets, collects and distributes the royalties, ( APRA/BMI ) is not involved, and one arm of the company is sueing the other ?

Sounds like a furfy.

cheers, niteshift

Nightshift,

I don't know what the laws are over there, but EVERY song used in television here are all liscenced. I guess that is why almost every record label is in on this lawsuit. And how in the world can you say it is not part of production costs? Where do you get that from? It is ALL part of production costs.

Everything from the minor gaffers to the liscencing of music are part of the production cost. It has been a topic of discussion for 15 years on every internet panel and discussion in the music business. There is always one panel dedictated to liscencing and the cost of doing that. One of the reasons reality television shows are on the air is lower production costs.

But again, I guess I wouldn't know. My information only comes from people in the business. Probably just an urban myth as well.

MAB

I think I am beginning to lean to the "eliminate all copyrights and give up on music collections completely." It would eliminate all these discussions.

MAB

Correct. But under what licence ? Broadcasters licence. Sync licence. Restaurant licence. Club licence. Private licencing for commercial work. Single event licence. Not for profit licence ?

It's all very much dependent upon cirumstance.



It's a right to broadcast. It's a flat fee, and part of fixed , not variable cost. A shows proportion of that cost will be placed in that shows' budget, but is minimal to it's production.



Current real world experience.



You're being condescending to others, and trying to shout the arguement down.

As I'll re-itterate, there are 2 sides to every story, and you are only half aware of half of one side.

cheers, niteshift

Niteshift.

I am not trying to shout the argument down. I could say the same for you. You are getting half the argument. Sorry, going to have to dissagree with you here. But I have an opinion too. You know, that is part of the problem we have here. I just don't think you are seeing it. And I think you are being condesending.
But I have said what I am going to. You can take it from here.

MAB

Niteshift, I know that here Film/TV folks will directly tell you that they cut costs by hiring composers and working with small-time writers. They'll tell you that it's because it costs them a fraction of what it costs to use hit songs.

Looking at the legal technicalities is interesting, but it's only the legal coloration of the bigger picture... Film/TV want to pay less for music in order to contain their costs and maintain some profit margin. It's common knowledge in this market and no one disputes it.

-Ethan

Hey Ethan,

Yes, I'm well aware of that. The drop and drag is next big thing, and has been for some time. Real composers, and commissioned work are becomming very scarce. That relates to scipted shows. It's well known.

The issue here, however, is the broadcast of incidental music for "live" television. Play ons and play offs, etc, where the script can change at 5 minutes notice. For that, it's a case of pulling something up from the database, a quick edit, and pulling up the faders. The cue sheet is filled in, and the appropriate fees collected.

I'm suggesting here, that the dispute maybe perhaps about what constitutes "live", as opposed to scripted, and hence a different licencing arrangement.

cheers, niteshift

PS - from the snippitts I've seen, it does appear to be a live show. I could be completely wrong on that issue, however.

Yeah, well I guess my point is - you're both right.

Maybe what is needed is a strike by all the creative people...like in Ayn Rand's Atlas Shrugged, where those who had the fruits of their minds "socialized", refused to share anymore.

And it will be interesting to see what RIAA will do here. It is easy to sue a single mother in Peoria, but a large, deep pocketed corporation????

Who is John Galt?

Yeah, I think the RIAA may have shot themselves in the foot on this one.

I notice the phrase "we don't roll that way.", which refers in the manner in which they roll tape. ( record the show )

I'm still of the view that large professional organisations are too smart for copyright infringement. It's too costly to break the rules. They may bend them, however, to suit there own means.

And where are the PRO's in all this ? They've never lost a copyright case, yet are noticeably absent. Too busy sueing small business owners I guess ? LOL

cheers, niteshift

I think you can think about this in two different ways.....

1. They didnt get permission to use the songs, but being a national show on a major network, there will be royalties from PRO's.....

2. This show, in particular, is AMAZING at breaking songs and artists to people who would otherwise never "choose" to listen.

IMO, some rules dont make sense. If the songs were written by some starving artist i may have to disagree, but most of the songs on her show are pretty mainstream. I dont think the artists themselves are complaining, just the labels because of their economic situation.

Just my 2cents....

the labels are going after the show to collect as owners of the master sound recordings probably aren't defending the songwriters. who'd be paid through their PRO

I'm sure this will be settled in a resonable way.

Ahhhhhh...... yes, good thoughts Ande.

Though any sync licence would be minimal in comparison to the PRO royalties from broadcast, which the publishing arm of the record company would get 50% of anyway.

It all seems like a matter of principle, than good economics and PR. I'll betcha this one goes quietly away.

cheers, niteshift