If the problem was copyright holders holding out for unreasonable royalties, we need a statuatory rate for use/reuse of materials. Don’t we have that for phonograph (that’s what they are/were called) recordings? After the first recording is made of a tune, anyone else can record it and pay the standard royalties unless something else is negotiated. This seems like it’s been working pretty well in that one industry. Why not have something similar for other media?
Or are copyright holders able to prohibit reuse outright? Same solution. AFAIK, they couldn’t prohibit a CD (“phono”) reuse, but they would get royalties anyway.
Or is the problem that DVDs weren’t forseen when the original show was created, and that particular medium just isn’t covered? Then maybe we need a law extending existing provisions into new media automatically unless something else is negotiated. This would also cover the impossible-to-find copyright holders (yes, those do exist in spite of ASCAP/BMI’s database, which is not perfect).
I believe that is the main problem in most of these cases- the licenses were only signed for television use, and reusing the material on home video and/or DVD would require new agreements to be made up. Going into other media, this is the same reason the family which bought the licensing rights to Winnie-the-Pooh from A.A. Milne back when he was still alive sued Disney a couple years back- Disney did not give them royalties for things such as computer games and DVDs that didn’t exist when the original Milne contract was signed, even though the contract specifically stated they would recieve royalties from as-of-yet-non-extant forms of media. As you said, there should be some sort of clause in agreements which allows for reuse in media types that are as of yet non-existant, but could someday be.
Back in the 1970s Ford wanted to use a Bette Midler song for one of its ads. Midler refused, so Ford hired a soundalike for the ad. Midler sued and won.
IANAL but I believe that while you may have the right to use the music and lyrics (upon paying a mandatory royalty) you have to negotiate separately with the recording artist to use their version – their actual voices, arrangement, etc. And, as the Midler case shows, if you copy it too closely, you can get sued.
So it’s a lot easier to NOT sound like the original, or better yet from a producer’s standpoint, use something different enough not to get sued over.
Kunilou, there is such a thing as compulsory license, which means that once the songwriter has recorded his song, anyone else may do so without obtaining permission, but has to pay a statutory royalty. This law was made in the days when it was called “phonograph”, but that has carried over to today, I believe.
I recall being in song publishers’ offices on occasion when an unexpected 45 record arrived in the mail, a new recording of one of their songs. The publisher wasn’t consulted, but a copy of the recording was often mailed to them as a courtesy, and they knew that royalties were subsequently forthcoming.
I’m not familiar with the Bette Midler case you mention, but it sounds like someone tried to copy her performance exactly and the “look and feel” of it was what got them in trouble. (Maybe that’s the exception hinted about in the Wiki article.) However, how can cover bands be excused from this kind of suit? Do you remember K-Tel’s late night offers decades ago that had “original hits” but when you got them, you found out they were nearly exact copies, rerecordings by studio bands made to sound like the “true” originals? I wonder how they got by with that? (Maybe they didn’t, as I don’t see those offers anymore.)
I was once hired to transcribe the exact notes of a studio sax player who quit a band just before they released an LP with his playing on each track. We got another sax player who duplicated his sound perfectly, and the record was released without the original artist but with his exact, copied sound.
My point is there appear to be many loopholes in the “you can’t copy my sound without my permission” concept.
It seems to me that the compulsory license was created to fill a legal hole very similar to the one that WKRP’s DVD now finds itself in, and I was proposing a similar law could be made to fill this new hole.