The reason, Mark Evanier notes on his blog, we don’t see DVDs of shows like “SCTV” and “WKRP in Cincinnati” is the difficulty and expense of rights clearances for music used during the show, even if it’s just a character humming. More on the difficulty and problem of rights clearances: Oct. 17, 2005 and links therein.
Warner Home Video better hope that a class action attorney with time on his hands doesn’t read the post’s last sentence about a DVD advertised as uncensored that isn’t uncensored; maybe it can be averaged out with the suit over Wal-Mart’s CDs.
Update: A commenter raises an important point:
While I agree that fans of such shows would be annoyed, I don’t understand why this is fodder for overlawyered. There are copyright laws in this country. They are enforced. And we have the freedom to contract.
If the owners of WKRP want to release the series they have to pay for rights to the songs. By what right should they get to use the songs for any amount less than what the copyright holders are willing to take?!
There are two separate issues. One is the issue of fair use; the other that of the bilalateral holdout.
Let’s start with the fair use issue. It’s almost certainly legal for a documentary to use a snippet of a song in the background as it is filming. But it will also almost certainly be cheaper for the documentary maker to pay for the rights to the song than it is to litigate whether that right is available. By making fair use expensive, rather than free, the public is worse off because there are fewer creative works available. A change in the legal rules to deter meritless challenges to fair use would benefit everyone.
The second issue is that of the holdout, and is more ambiguous. X owns the right from Y to use a song in a tv series, but, because of poor contract-drafting doesn’t obtain the same right for use in the future medium of DVD. The song has become associated with the tv series, and is now worth more than it was ex ante; Y tries to extract economic rents that were generated by X. It’s a sensible argument to say we shouldn’t cry for the inside-baseball machinations of studios and music-rights holders jockeying for these economic rents; they had the ability to protect themselves, but failed to do so, and the problem will disappear in the future as entertainment lawyers learn to account for non-existent technology in current contracts. Still, in the short term, some deals will break down or not get made at all as the two sides play chicken, and consumers are a little bit poorer in the process. A society can choose to have a mandatory licensing scheme (as the US does in many other copyright areas) to prevent the loss of consumer surplus when these negotiations break down; or a society can choose to let copyright holders attempt to maximize their own utility and wealth, though at the expense of requiring expensive lawyers to negotiate these things, with the result that fewer beneficial deals get made. It’s not immediately clear to me which is “better.”