That idea has some good feelings, but when a lawsuit can be dragged on for literally 15-20 years in som cases, having that money in escrow the whole time is basically like having to spend it, up front, for the privilege of going to the courtroom… which, if you’re the defendent is not an improvement on the current situation in many to most cases.

The viewers might. 🙂 Where can I pay not to see it?

and even had to pay $5000 for a “visual vocal cue” when a boy said, without singing and without music present, “Everybody dance now!” because it summons to mind a certain C+C Music Factory song with that name.

As a matter of law, that’s probably completely unnecessary — but (and here’s where this really ties into the Overlawyered theme) the costs of defending against an action if C+C sued are just too high to take the chance. If we had a real “loser pays” system, they could afford to do so.

In this instance we can see what the market solution has been a bad one. Shows like WKRP will never be redistributed under the existing legislative regime. It will never be worth obtaining rights from all the rights-holders, especially as the last holder to consent has the opportunity to extort a higher price than anyone else. It’s a situation where everyone has a perverse incentive to stymie the deal. It’s evident that the frictional costs of obtaining permission are even greater than the actual costs of the rights. This means that we are burying part of our culture for no good reason – nobody suggests that it would be a bad thing for people to see WKRP or to read old magazine articles. In fact, nobody argues that anyone would suffer actual loss if WKRP was shown for free. Their damage would consist of the money they would have earned if a deal could have been struck, and since no deal can in fact be struck there can be no damage.

Many people (including myself) have an instinctive feeling that intellectual property isn’t like real estate or physical goods. In one sense all property rights depend on the government, but in fact there was property in land and chattels long before intellectual property was legally recognised. Intellectual property was created to solve problems of resource allocation, and the laws have been altered on many occasions when the need became evident. This is another occasion where the need has become evident. One solution would be compulsory licensing, an arrangement that works well for similar problems in Australia and some other jurisdictions. I don’t suggest that any solution will necessarily be free from problems, just that there will be a solution that is better than the current state of affairs.

Immediately after that, there’s a segment interviewing a pair of lawyers (link to transcript, audio link available) on the topic of music found in documentaries. Though the lawyers favor enforcing different strengths of protection by copyright law, they both lean towards the idea that these are good examples of fair use, but that well-funded films are in the habit of paying off the music-owners, and music-owners are in the habit of getting paid, and when a documentarian comes along with some defensable uses but no money to execute a fair-use defense in court, it is a serious obstacle to documentarians. And furthermore, that filmmakers are pretty ignorant of the law, so paranoid are they about getting sued or billed for some trademarks appearing in their films or whatnot. (Yeah, I know trademarks are a separate set of laws, but it’s all IP to me.)

But this exact same issue cropped up frequently several decades ago, during the early days of the “home video revolution,” in connection with theatrical features. If I recall correctly, for example, the intial video release of the popular 1981 adult animated film “Heavy Metal” was delayed for years by legal disputes over money and music rights.

In some cases, the soundracks of theatrical films were actually altered for their video release as a result of such disputes. This was done, for example, with early video releases of the John Hughes teen-comedy “Sixteen Candles” (1984). For the first versions of that film released on Beta and VHS, disputed pieces of music from the original theatrical score were replaced with other musical selections. Only in 2003 did Paramount finally release on DVD the original theatriacl version of this film with the complete and intact original musical soundtrack from 1984.

On copyrights as property rights, I say fine. If that’s what the holders want. Of course you then give up your rights as copyright holders and the special protections (limited monopoly) it offers. Meanwhile states with property taxes should be overjoyed. I wonder what the property taxes would be on “That’s Life” or “Stairway to Heaven”? And since their are at least two copyrights involved, (performance and songwritng) The states could double dip. For example, “Frank Sinatra’s “That’s Life” So the label and Frank’s estate would pay property taxes on the recording, based upon the value of the recordings income potential or actual income, while Dean Kay would pay on the songwriting, and since he’s licensed the tune to more people and uses than Frank did, he would have to pay based on the value generated there.

Trust me creators/copyright holders, you don’t want to go there. And since the publishers and ASCAP get a cut, shouldn’t they have to pay too?