Nina Sings The Blues

The uncomfortable peace between the freedom of speech and expression, artistic liberties and copyright laws has again been disturbed. This time the challenge is mounted by Nina Paley, a US based cartoonist and filmmaker. The controversy centres on the music pieces used by Paley in her animated feature film titled Sita Sings the Blues.

The theme of the movie, as briefly defined on the movie’s website is:

Sita is a goddess separated from her beloved Lord and husband Rama. Nina is an animator whose husband moves to India, then dumps her by email. Three hilarious shadow puppets narrate both ancient tragedy and modern comedy in this beautifully animated interpretation of the Indian epic Ramayana. Set to the 1920's jazz vocals of Annette Hanshaw, Sita Sings the Blues earns its tagline as "The Greatest Break-Up Story Ever Told”.

The animated film has won awards and rave reviews in several film festivals around the globe. An article by film critic Roger Ebert is an example of the praise the film has garnered.

In spite of the praise and hype, Paley is unable to release the film commercially because it’s locked in the ‘copyright jail’. In fact Nina’s blog has quite an image of a blue eyed, curvaceous, made up Sita behind bars which seek to symbolise the copyright jail. The image is reproduced above.

The problem relates to the music used by Paley. The music consists of 11 Hanshaw recordings. The copyright over these sound recordings has run out and they are in the public domain. However, in lieu of the term extension granted to copyrighted works by the Sony Bono Copyright Term Extension Act, the underlying compositions, i.e., the lyrics and written music for the songs are still protected as musical works under copyright law. Thus, in order to release the movie, Paley needs to get licenses from the owners of these underlying works. The owners of the 11 tracks used in the movie are the ‘big boys’ in business, namely, EMI, Sony-ATV Music Publishing and Warner-Chappell Music amongst others.

Originally, these corporations are ready to give the license for the 11 songs at issue in the movie was $220,000. This sum was simply unaffordable for Nina. Subsequently, Nina was able to get this amount reduced to a step-deal that starts at $50,000 (which she’s taking out a loan to pay) and goes up from there depending on how successful the film is.

The problem for Nina is that this step deal is also quite expensive and burdens her considerably. The working of the step deal is as follows: If the film was to be shown in theaters and made a million dollars at the box office, Nina would have to pay another $38,500 for the licenses. That means that if the film makes a million dollars at the box office, the publishing companies that own the rights to the compositions sung by Annette and used by Nina make more collectively than Nina makes. However, Nina is hopeful on this front as she says that after theaters, distributors, agents, etc. take their cuts and deduct their costs, $1million in theatrical receipts would trickle down to about $30,000 to $80,000 for her. Thus, it’s very unlikely to ever generate that much box office revenue, so as to trigger the additional payment costs.

As regards the DVD sale, the deal stipulates that for every 5,000 home video units sold (DVD or download sales or on-demand sales) Nina must pay another $750 per song, meaning $8,250. To this she adds her own middleman fees (lawyer or negotiator – for which she has already been billed about $10,000 just trying to negotiate with these corporations). This is based on the calculation such that the fee of the corporations works out to be $1.65 per DVD, regardless of how much the DVDs sell for. This concerns Nina as it can turn out to be a costly proposition in a situation where she is already debt ridden.

Unable to pay the basic amounts, Nina’s movie isn’t finding any distributors. Hence, in order to find a way outside this maze, Nina has turned to her audience, vehemently arguing that copyright laws are being used by these corporations to own culture and independent film making is very difficult with these sharks in the water. Hence, the audience is asked to make donations to the cause to free the movie of this prison and help in its distribution. Just to note that normally such charges of licenses etc are paid by the distributors of the film. However, given the financial crises, the distributors are bleeding and aren’t giving any support to the independent indie film.

So it’s a big bad world and red riding hood needs to be rescued. Nina says that she will release her film under the Creative Commons Share-Alike, or some equivalent of the GNU/Linux license. Such a move will prevent it and any derivative works from ever being copyrighted by anyone. The free online copies of the movie will be marketed as promotional copies and such copies will fall outside the ambit of the step deal. As per the terms of the step deal, such copies can be distributed without the copyright owners laying a claim to the same. So Nina also plans to distribute promotional copies such that more people can get their hands on the movie.

Interestingly, in a scathing critique of the entire situation, Ben Sheffner states that Paley should have dealt with the problem of licenses prior to the making of the film. If the music was such an integral part of the film, then rights related to it should have been cleared at the earliest. Moreover, the bigger issue is whether you should be allowed to use someone else’s work in your creation even when you cannot afford it. Nina argues that she has worked on ideas already there and that charging such high prices suppresses art. Sheffner goes on to state that such a right to use another’s property at a price you afford simply doesn't exist in the law. He compares the situation to arguing that one has a right to the new BMW 6-Series at a price at which he can afford it, rather than the price BMW chooses to charge. In a response, Goldenrail argues that it is not fair to compare these licenses to a BMW, as once BMW sells the car, it cannot sell the same car again. However, for the publishing companies to come to a reasonable agreement with Nina (she offered them a %), it would increase the value of their property by getting it more attention, not remove the property from their possession all together, as with a physical good. So they keep earning from it. Further, he argues that promoting the movie under the GNU/Linux license does not take away from the illegality of the use of Hanshaw’s music. He concludes to state that, “But Paley, like everyone else, must obey the law, and pay for using what isn’t hers. That, she does not seem to have done.”

Which way this debate goes is for us to wait and watch….