Okay, I can accept that back in fifties and sixties and seventies nobody anticipated the concept that television series would someday be released in formats for people to buy and watch at home. But VCR’s caught on in the eighties. So why are producers still having problems over music rights?
Here’s an example. Third Watch was produced in 1999. It ran through 2005. But it wasn’t released for sale until 2008 - by that time it was a series that had ended three years ago and you have to figure there wasn’t that much lingering interest in the show. The producers would have been much better off if they could have released the first season back around 2002 or 2004. What was the hold-up? Prolonged negotiations over the music rights.
And why? Didn’t anyone back in 1999, when the show was being made, stop and consider the issue of home release? It certainly was not an unknown concept by 1999. Why didn’t the producers negotiate an agreement then for future home releases? At that point they still had the power to tell the music companies they would just use other music if a reasonable agreement couldn’t be reached.
Why don’t producers nowadays routinely negotiate agreements for broadcast and home release rights at the time of production?
Because “sync rights”, the right to play a particular piece of music with visuals, have to be negotiated with each rights holder. And as the music industry has changed significantly since 1999, the rights holders have become even greedier than they were back then. The cost of right to play music on the radio is fixed - one song does not cost more than another. Same thing with performing a song on stage - pay your ASCAP or BMI fees and you can play all the songs you want. But as new technologies have appeared, the rights holders have squeezed users tighter and tighter (and of course paid the actual artists less and less).
So they may have thought they were covered when they produced the program, but the costs of the synchronized songs has gone up.
That’s kind of my point. Why do producers put themselves in such a poor position? They appear to got to a record company and say, “Hi, we’re making a TV series and we’d like to use one of your songs. We’ll just negotiate a deal now for the broadcast right. But a few years from now, after we’ve broadcast the show and shut down production, we’ll come back and negotiate a new deal for the home release rights. Obviously this means you’ll have us over a barrel in that future negotiation. But we’re not worried about that today.”
Why don’t they instead say “Hi, we’re making a TV series and we’d like to use one of your songs. We want to negotiate a deal now for the broadcast and home release rights. That way we won’t have to worry about your future asking price. Obviously you can insist on some outrageous sum for these rights but if you do we’ll just go to another company and use a different song. Changing a song is no big deal at this point in our show’s production.”
Because if they did this 100% of the recording houses would just say, “There’s the door, Chester!” There’s no advantage for them to negotiate that fee early on like that so what possible reason would they have for doing it? Your line stating “That way we won’t have to worry about your future asking price” is like saying “That way if the show turns out to be a huge hit and breathes new life into your old & forgotten song you won’t be able to profit from it!” Not what you’d call a good sales pitch!
Plus the people on the other side, the producers of the TV show, don’t really give a shit about the home video rights because unless they’re also the owners of the show they’re not going to share in any home video profits. Their only concern at that stage is getting the show to air.
The other side is that there’s no advantage for them in not selling the rights. That’s what they do for a living and they only get money when the rights are sold. So both sides have an incentive to make a deal.
No, in most cases the producer* has a share in the ownership of the series. He’ll be hoping to collect a share of future royalties from those home release sales and will have a personal stake in making sure there are no difficulties.
*Complicating this is the fact that there are several different levels of producers in the television industry. You have Executive Producers, Co-Executive Producers, Production Executives, Supervising Producers, Coordinating Producers, Co-producers, Consulting Producers, Line Producers, Associate Producers, Segment Producers, Chase Producers, Field Producers, and Production Assistants (in approximate order of power).
You’re overlooking the obvious. Let’s use your example show, Third Watch, which you say ran from 1999 until 2004. The DVD format was still a fledgeling in 1999, primarily purchased by a hardcore audience of film buffs who were really into widescreen; there were maybe a million DVD players in homes. At that time, the notion of putting a current TV series out on DVD was laughable; the first show I can remember being released in full-season serial form was The X-Files in 2000, and one season ran about a hundred bucks. As an aside, full season shows on VHS were practically unheard of, because one tape could only hold three or four episodes of a half-hour show, or two episodes of an hour-long show; a full season of a typical American series would take up around seven to thirteen tapes. British shows fared better, because they tended to run six episodes to a season rather than twenty-six.
But I digress. Basically, back in 1999 at the time you example TV series was produced, there was no home video market for television shows at all apart from determined archivists. That being the case, there was no reason to even consider negotiating home video rights for music up front. Which leaves us where things are now: the studio considering a title for home release has to determine what music needs to be licensed, track down the current copyright holder, and secure a home video license, for each song. Knowing this, the studio carefully weighs whether the money they expect to make from the video release will sufficiently exceed the time and money involved in this process. If it won’t, the set won’t get released until the profits justify the expense.
I blame it all on WKRP In Cincinnati and a shady music industry cartel that doesn’t want us to ever have that show on home video.
Joking aside, *WKRP *is often held up as the poster child for this as it was a show based on a radio station. They probably played bits of 10 different songs in every episode, and nailing down rights to all those songs on probably every rock label extant in the late 70s turned out to be such an insurmountable challenge that there was an ill-advised attempt to overdub with generic “production” music that stank on ice, so the whole series has been locked away somewhere.
I actually have the first season of WKRP on DVD; it was released three or four years ago. About 75% of the music has been overdubbed with replacement stuff. It does lose a little bit, most noticeably in the episode when Les takes Jennifer as his date to the Buckeye News Hawk awards dinner, and he’s getting dressed to Foreigner’s “Hot Blooded” (having some generic music in there doesn’t feel the same), but I think most of the episodes still held up pretty well even without the original music.
The same thing contributed to ***Daria ***not being released for ages. And when it finally was they had replaced all the incidental music. Noticeable, but not devastating…
Both parties do have incentives to wait. Not securing home release rights doesn’t keep the show from getting made, and since there are so many things that will keep the show from being made, it makes sense for producers to focus on those at the start. Similarly, if the label drives too hard a bargain in pre-negotiations, they might find other music selected. Basically, both sides save on negotiating power by waiting to fight until they know for sure there’s something worth fighting over.
It would definitely be better in terms of transaction costs if there were an industry standard agreement that everyone could just quickly agree to. But since the industry is changing so quickly, no one wants to be left on the wrong side of a standard agreement. In terms of maintaining relevance, it’s much better to collaborate on individual ventures to the most limited extent possible and ensure that any future profits are subject to your veto.