Friday, June 06, 2008

Dunt- da-DUNT- da-dumb

I received quite a few emails asking me for a take on this, so here goes.

What's incredibly unfortunate is that, on the day after a pretty entertaining final series finished, the top hockey story comes as a result of a well-timed press release designed to turn public favour against one party in a fairly ridiculous lawsuit.

David Staples put together the best piece on the funny business:
The composer of the piece, Claman, and her company, is suing the CBC for $2.5 million. They allege the public broadcaster has repeatedly used the song in broadcasts not covered under her license agreement and has refused requests to negotiate additional fees, according to a statement of claim filed in an Ontario courts, Canwest News Services reports.

Hard to believe this lawsuit isn't a big part of the present fight. It's worth noting that it was Claman's side that just went public with this. Why did they do that?

Perhaps to make the most noise at the best moment, just as hockey is at the height of its news cycle, with the Stanley Cup just awarded to Detroit.
The public opinion war has already come out in full force, as this was the most-read and most-commented-on story at globeandmail.com on Thursday, and I've had several requests to join "save the song" Facebook groups.

All reasonable efforts will be made to keep the song, for obvious reasons, but at some point, enough is enough. The song is popular because of the CBC, the show and its traditions, not the other way around, and Hockey Night in Canada should be able to purchase the rights for a just price.

The composer has been well-compensated for 40 years for a short piece of music put together in less than a day, and the $2.5-million lawsuit is a flat out attempt to gouge the broadcaster.

Don't fall for this one.
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21 Comments:

At 2:33 AM, June 06, 2008, Blogger J. Michael Neal said...

I know nothing about Canadian specific intellectual property law, so if I get something wrong, I'm going to use that as an excuse.

As a general rule, the foreign rights to a piece of intellectual property are a big deal. It's something that a company that is presumably as savvy as the CBC shouldn't screw up. Yes, the composer and her lawyers are undoubtedly holding everything hostage, but, if the claims are true, then the CBC really has no one to blame but itself.

One thing about intellectual property rights, in most cases, is that they have to be defended. If you don't defend them, you lose them. This is a bit looser with copyrights than with trademarks or patents, but still an issue. So, the fact that a lawsuit was filed really shouldn't surprise anyone.

Beyond that, I think that there has to be something else going on. If the CBC's position that they've been trying to come to a settlement and everything has been frustrated is an accurate representation, I'm left with a very serious question: why don't they just let it go to trial? If, as we all assume, $2.5 million is a ridiculous sum to ask for, then make the plaintiff go to court and demonstrate the damages. If they won't negotiate in good faith, then letting the lawsuit proceed would be, based upon the facts presented, the best option for the CBC. Yet, here you all are, four years later, and the hold up is the settlement negotiations?

What am I missing?

 
At 2:44 AM, June 06, 2008, Anonymous Anonymous said...

$2.5 million? That's more than some hockey players are making ...

 
At 3:33 AM, June 06, 2008, Anonymous Slater said...

Greed and stupidity. This is why Copyright on a given composition should last no longer than 40 years.

CBC should dump the song until it enters the public domain.

 
At 6:38 AM, June 06, 2008, Blogger itchit said...

I've heard that theme song in HNiC's commercials, other brands commercials, comedian's acts, etc... There's no denying it has entered our cultural landscape. As such, this woman Claman has hit the songwriter's/composers fabled home run. If you heard the song you wrote all over the T.V. and radio wouldn't you try to squeeze all the cash you could out of it as well? Unfortunately she may end up like that poor dog on the bridge with a bone in his mouth who sees his own reflection in the water, decides he wants both bones and ends up with neither.

 
At 9:26 AM, June 06, 2008, Anonymous Mike J said...

They play it at Duke University Lacrosse games - don't tell Delores, Duke has more money than the CBC.

$500/game seems like a pretty good living to me...the CBC must show 200 games at least in a year. She has made a killing on 40 years of hockey games...

 
At 10:14 AM, June 06, 2008, Blogger Ryan said...

Question is, can they sample it and do a hip hop version of the intro? Someone get Timbaland on the phone...

 
At 11:05 AM, June 06, 2008, Blogger eyebleaf said...

i don't know about a remix, man...

 
At 11:28 AM, June 06, 2008, Blogger E Colquhoun said...

Hi James,

I am an avid reader of your blog and enjoy reading what you have to say. I have emailed you from time to time to get your opinion/ comment on things in the hockey world but I am afraid that I have to disagree with you on your comments about the Dolores Claman/ Hockey Night in Canada theme.

Putting all sense of warm feel good nostalgia aside, I see this as a case of artists, creators if you will, being “fairly” compensated for their work. I would have thought that you as a writer, as someone who makes a living on what comes out of your head and it is then put in to a form for others to use, would have more understanding of this point.

Yes, “The song is popular because of the CBC, the show and its traditions, not the other way around” but that shouldn’t predujice Ms Claman from being compensated for the continued usage of her work in whatever form that may be.

According to the Toronto Star, June 6th, “In 2004, a group that includes Claman filed a lawsuit seeking $2.5 million in damages, charging the CBC with breach of copyright and breach of contract. Claman, Vine Maple Music and Copyright Music and Visuals claimed the CBC used the hockey theme without authorization both inside and outside Canada, sold it for use as a cell phone ring tone and altered the arrangement without approval.”

If the CBC only had rights to use the song for it’s HNIC broadcasts and then used it as Vine Maple Music and Copyright Music and Visuals claim then there is an obvious violation of usage and Ms Claman should be compensated for that. Just as you should be if one of your articles that you write for the Globe was used for something else then what your contract with the paper indicates. Unless of course the Globe owns everything that you do and can use it however and whenever they deem suitable in perpetuity?

To your point that, “The composer has been well-compensated for 40 years,” again according to the Star, “(Claman) also said she didn't receive royalties until the early 1990s after her accountant pointed out she was missing out on potential income. The royalties were not retroactive.”

Is this a case of, “Ya snooze, ya loose!”? Is she not owed royalties retroactively?

Further, I think that it is completely irrelevant as to how long it took to compose the piece of music as to whether or not she has a valid claim. That shouldn’t even enter into the argument at all. Should you be paid for the work you do based on how long it took to write it? If that is the case then you should throw out the laptop and go back to making your own parchment, cutting yourself a crow quill nib and crush pigments to make your own ink for writing your columns and then receive your windfall.

 
At 12:53 PM, June 06, 2008, Anonymous Anonymous said...

"i don't know about a remix, man..."

Amon Tobin (Ninja Tune record label) did one for the Exclaim Cup a few years go.

 
At 1:09 PM, June 06, 2008, Blogger Doogie said...

Just because Claman's lawsuit is likely at the heart of the matter, that doesn't mean that people can't demand that CBC just get this shit done. I mean, four years, people. I'm no lawyer, but I can't fathom how this could possibly take four years to get sorted.

I think Staples' take is the best so far: both sides are suffering from acute cranial rectosis, and need to take appropriate action. It may be just a TV jingle, but it might be the most culturally significant TV jingle ever recorded (Doctor Who fans, feel free to disagree).

 
At 1:15 PM, June 06, 2008, Blogger Peter Lynn said...

James, it couldn't have taken you that long to write this post and many others. Mind if I reprint and sell them for my own profit?

She wrote the song, she owns the copyright, and she deserves fair compensation for the fruits of her labours. Pay the lady.

 
At 1:21 PM, June 06, 2008, Blogger James Mirtle said...

No one's arguing that she shouldn't be compensated. She has been and she will be.

This is about fairness and a PR war.

 
At 1:30 PM, June 06, 2008, Blogger ben said...

This is quite possibly the best real-world example of our country's need for sane copyright limits. Absolutely Claman should be compensated for her work -- for a limited period of time after it's creation. (If she's legitimately owed back royalties, then she should get them). No work of art is created in a vacuum. It is inspired by the works in the public domain and cultural atmosphere of its time, and should be returned to the public domain after a limited amount of time. 25 years seems reasonable. 40 years is certainly reasonable.

Once it's in the public domain, all uses -- either by TSN or as ringtones or as part of a perfume ad -- become valid.

 
At 2:32 PM, June 06, 2008, Blogger mc79hockey said...

No work of art is created in a vacuum. It is inspired by the works in the public domain and cultural atmosphere of its time and should be returned to the public domain after a limited amount of time. 25 years seems reasonable. 40 years is certainly reasonable.

So CBC should win because of what you think that the law should be but clearly isn't?

 
At 2:47 PM, June 06, 2008, Blogger ben said...

So CBC should win because of what you think that the law should be but clearly isn't?

No, I was using it to illustrate how I feel copyright law is currently broken. I personally don't care who *wins*, it's the public that loses in either case.

My opinions is, that after 40 years, the work should have entered the public domain. I don't think this is going to happen, but this situation highlights the inanity of our public policy of protecting copyright holders (almost) indefinitely.

 
At 2:57 PM, June 06, 2008, Anonymous cynical joe said...

The CBC should have bought the rights to the song long ago, in fact the longer they simply 'rent' the song the more they up its 'value' to the composer. If CBC drops the song it'll be bought up the same afternoon by TSN or Sportsnet. CBC obviously wants Claman to drop the suit before they renegotiate a new deal. Claman wants the CBC to settle the suit in her favour. I think she'll take less than 2.5 but she isn't going to settle for a hearty handshake and $500/game.

 
At 5:27 PM, June 06, 2008, Blogger Art Vandelay said...

Some commenters want to substitute contract law with their subjective judgement, under the guise of "fairness," "greed and stupidity," or "good living."

CBC has (had?) a contract with Claman. It may or may not have paid her $500 each time it was played on HNIC.

How long it takes to create the work is irrelevant. How long she's been getting paid for that work is irrelevant. Did Paul Anka take more than 15 minutes to write the Tonight Show Theme? How many millions of royalty cheques did he cash on that baby?

As we've seen in recent years with print journalists (was it the NY Times? or WSH Post?), creators who are or were paid to create work for one medium sue to protect their work when the proprietor uses (exploits? to use a loaded word) that same work in other media. Claman is protecting her copyrighted work.

If CBC is using the song in non-HNIC instances, it is presumably doing so because the network feels it adds value in some way: building a brand, selling ads, etc. If you believe in a market economy, it's practically a self-reinforcing argument that the extended usage is worth something. And depending on how a judge interprets copyright law, that something will result in money in Claman's pocket. For past use, if nothing else.

Now that the contract has expired, both parties have the right to walk away. But that's a separate issue.

 
At 6:10 PM, June 06, 2008, Anonymous Anonymous said...

This shows the CBC's incompetence. I assumed, like most people, that CBC owned the rights to the song but somehow, in 40 years, they never bought it. I guarantee you that a public broadcaster wouldn't be so stupid as to brand its most profitable show with a song while not controlling the copyright.

Maybe Bob Cole was calling the shots...

 
At 1:49 PM, June 07, 2008, Blogger Doogie said...

I guarantee you that a public broadcaster wouldn't be so stupid as to brand its most profitable show with a song while not controlling the copyright.

And yet they did. Funny, that.

 
At 12:23 AM, June 08, 2008, Anonymous Anonymous said...

The composer may have a legitimate case here, but this still seems like just a lot of posturing.

I just can't see another broadcaster paying to use this song, since in the public mind it is just so strongly associated with Hockey Night in Canada and the CBC. If say, TSN bought the rights to the song and used it in their hockey broadcasts, it would be akin to Burger King putting Ronald McDonald in an ad. Basically it would amount to giving a free plug to a competitor.

 
At 3:59 AM, June 18, 2008, Anonymous Anonymous said...

Sure didn't take long for many comments here to be shown up as dead wrong.

Good to see Eric Colquhoun and others got things right off the face-off.

 

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