I Don’t Want to Wait…For My Rights to Be Over: Licensing and Streaming.

If you are a fan of 1990s and early 2000s TV shows like Dawson’s Creek, X-Files, Scrubs, etc., and you’ve revisited them on a streaming platform, you may have noticed that the music is not quite how you remember it. Sometimes the problem is obvious, like Dawson’s Creek is missing its iconic intro theme song! Other times, missing music creates plot holes (read more about the X-Files “Beyond the Sea” episode below”). While the beloved characters and stories remain the same, the music is not – and no, you are not imagining it.

The issue is copyright and licensing. Certain technologies like streaming simply did not exist at the time that intellectual property rights were determined and licenses were negotiated for those particular shows. Producers did not foresee the need for more expensive perpetual licenses when DVDs barely existed and streaming services were more than a decade away. Wanting to use a particular song but not having the budget led to compromises, such as limited-scope and duration licenses. It was not uncommon to get a particular song for “broadcast-only” play for 5 years. The license was sufficient to cover the show’s initial run (and any near-term reruns) and made it possible to feature some instantly recognizable tunes.

The limited scope licenses created unforeseen issues with streaming technology. A new market emerged for old TV shows through on-demand services like Netflix and Hulu. Simply put, the creators trying to negotiate the release of their series on streaming did not have the right to license the music. For example, a 5-year license for a 2001 show expires in 2006. In 2021, the show’s producer wants to release the show on Hulu, but the owner of the them song rights (most likely a corporation like Sony and not the individual artist) sees this as an opportunity to demand a significantly higher royalty fee. The creator then has a choice – pay whatever the licensor demands or replace the original song with something different (i.e. cheaper).

Predictably, fans are not happy with the alternatives. After all, music is an integral part of nostalgia, branding, and the viewing experience is just not the same without it. Theme songs, like Dawson’s Creek’s famous “I Don’t Want to Wait” by Paula Cole, are inextricably tied to the show. For instance, I have never seen an episode of the show, nor have I ever heard of Paula Cole, yet I have heard that particular song and know that it is the Dawson’s Creek theme song. That’s powerful branding.

In other cases, music copyright issues create nonsensical plot points. A 1994 X-Files episode titled “Beyond the Sea” featured a psychic serial killer who, during interrogation, sings a few bars of Bobby Darin’s “Beyond the Sea” – a song that was played at Scully’s father’s funeral earlier in the episode. The scene is meant to be disconcerting and leave the audience wondering whether the killer really possesses otherworldly powers. But in the streaming version, the song played at the funeral is “La Mer,” a jazzy tune sung in French. The killer singing “Beyond the Sea” (as well as the episode’s title) suddenly makes no sense – and instead of feeling spooked, the audience is left confused and questioning Scully’s reaction.

Cross-licensing and copyright considerations should be front and center for any modern content creator. Certain shows, like “Freaks and Geeks,” decided at the outset that the vintage soundtrack would be an integral part of the show and the producers invested in perpetual licenses. If you are a content creator, it is a good idea to decide whether the music is an integral part of your final product, and if so, whether you are willing to negotiate and pay for the right license. More expensive “in-perpetuity” licenses are now the industry standard and music budgets have expanded accordingly. If you are independent creator without a budget, look for independent artists, royalty-free or fixed-cost options, or be prepared to invest in the right intellectual property at the outset.

The licensing issue is not confined to TV shows. Similar problems exist with gaming – video games, music, and streaming rights are not all necessarily compatible, even though they intersect on online content platforms like Twitch and YouTube. Players broadcasting their games across the world, with commentary, personas, and other embellishments (like yes, music and sound effects) creates a whole host of potential issues. New technology breeds new intellectual property problems.

Finally, why does it matter? Even if you are not concerned about a DMCA takedown notice or litigation under the Copyright Act, licensing issues can impede the distribution and monetization of your creation down the line. A buyer, publisher, or distributor will be much more interested in your product if you have all the rights. In other words, as a businessperson, you should seriously consider investing in intellectual property at the outset, rather than trying to resolve issues only when they arise.

Have additional questions? Need a licensing deal reviewed or negotiated? You can email Dan or call or text him to set up your initial consultation.

© 2021 Artaev at Law PLLC. All rights reserved.

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