When copyright stymied Christmas: Synchronisation rights and impact on community filmmaking

This article was previously published by the author on Medium.

In 2015 I made a film with Katherine, a photographer, and Matt, a media artist. We put together a crew with Aaron, Ben, Ruthwanthi, Tenielle and William — members of First Impressions Youth Theatre. We were brought together by the City of Whittlesea’s Community Cultural Development team. The City of Whittlesea is one seventy-nine local government areas, or councils, in Australia’s state of Victoria.

This Choir Sings Carols is a film is about an annual community event conceived of and supported by the City of Whittlesea. It takes place in Melbourne’s outer northern suburbs and it brings together people of all ages and origins. More specifically the film is about a choir that only sings songs about Christmas.

Members are a mix of amateur and semi-professional singers. Some, like 94-year-old Fred, had only begun to sing in their later lives. Fred joined the choir after his wife had died where he made new friends. And like Fred, many will only see each other in October of each year when the choir reunites to rehearse for their annual Christmas events.

Christmas songs and copyright

As filming began I realised not all the songs the choir were singing are in the public domain. This means we would need permission from whoever owns the rights to these songs, songwriters or their publishers, to publicly screen the film. Not doing so we’d be infringing their copyright and breaking the law. Given the film was commissioned by the City of Whittlesea we all assumed rights to these songs had been cleared. They couldn’t be sung in public otherwise.

With the film shot and edited staff at the City of Whittlesea and I began to compile music credits. It was at this time we discovered only the rights to perform these songs in public had been cleared. A modest fee had been paid to the Australian Performing Rights Association to cover the public performance of these works. However, a total of 5 minutes and 50 seconds of music in the film was not in the public domain. That’s ten songs averaging from 7 to 18 seconds each. We had to seek permission of music publishers and in doing so they could waive rights fees or not. They chose not.

Publishers quoted a total of AUD$11,000 for the right to use these songs in our film. Additionally, they would set limits on what we could do with the film. All this would be set out in an agreement to be renewed every three years. The City of Whittlesea and I scored a lesson in synchronisation rights and how those rights would limit the use of our film, This Choir Sings Carols.

Clearing music publishing rights

By mid-2016 the film was almost completed and the City of Whittlesea and I discovered all music publishing rights had to be cleared. And we had to do so before the credits could be locked off and the film debuted. There was talk of a launch screening at the Hoyts cinema complex in Epping, a nearby suburb. Everyone was getting excited. By everyone, I mean Council workers, the young filmmakers, every choir member, their family and friends. The City of Whittlesea also supports First Impressions Youth Theatre which meant their parents and friends would be at the screening too along with the Mayor and other VIPs. But first, we had to request permission for the use of the ten copyright-protected songs heard in our film.

I’ve dealt with music publishers before and have a reasonable understanding of copyright. After all, I’ve been writing songs, playing in bands and composing for stage and screen for much of my life. Fifty per cent of some of the music I wrote in the 1980s is still owned by Warner Brothers. I’ve also had rights cleared and fees waived by SONY for samples from the film Ghost in the Shell. These had been processed into an early generative composition of mine. SONY waived the fees on the basis that the work had been incorporated into my Master's research and as such had an education component they were happy to support. During my tenure as Program Director at Open Channel, I’d produced several public forums on copyright for filmmakers, some in collaboration with Arts Law Australia. Through the 1980s and 1990s, I was a member of the Australian Writers Guild. I had written two screenplays and rather concerned that my intellectual property was up for grabs when collaborating with the late Bob Ellis. I have a pretty good idea of what’s involved when it comes to copyright.

But let’s be clear. Protecting one’s intellectual property is invaluable. An artist's original work ought both to be valued and respected. Copyright does that. However, I don’t agree with copyright infringements that result in exorbitant fines and jail terms for merely sharing. If there’s no profit motive involved, sharing ought not to be criminalised. Creativity and the sharing of our works ought not to impinge on a meaningful, learned life abundant with curiosity. I would rather my work be shared and even pirated than not be known at all. Obscurity, says author Cory Doctorow, is a greater threat to artists than piracy.

I’m also interested in the non-profit use of copyrighted material. Much of my professional work takes place within the cultural development sector where in Australia no copyright exceptions exist for cultural development practitioners. In Australia, we rely on negotiation. I’d always believed one can appeal to copyright holders for their support. Who would not want to back a community-led film for example? As we would find out, every publisher we approached didn’t. Nevertheless, the business of clearing rights had to be undertaken. It’s a tedious business. Not for the publisher, for those that seek to have rights cleared. Here’s what we had to do.

Firstly, we compiled a spreadsheet of all the songs that appear in the film, in the order they appear in and for how long. Some pieces are heard twice which extends their duration.

Next step is finding out who the copyright holders are. The Australian Performing Rights Association provides a nifty search engine. Enter the title of a song and we find the author(s), the publishers and whom to contact.

Every publisher has someone who responds to synchronisation rights requests. I began by preparing email correspondence keeping in mind that all each email had to be accompanied with a detailed list of the songs in the order they appear in the film along with durations. Thankfully I had our spreadsheet prepared in advance. However, some publishers have their own spreadsheets. Hence adding to one’s workload. As I would discover, there’s no boilerplate approach to these requests. One size, in this instance, does not fit all. But you do it because that’s what is expected of filmmakers.

Then, after the emails are sent, if people aren’t on leave, and some were, we go back and forth ensuring our information corresponds with their requirements. And the same again when people return from leave. Then we wait. If you’re a busy production house you may have people to whom you can delegate such tasks to. In my case, I pretty much do everything. As well as wait.

Who are the publishers?

The publishers we were dealing with are huge. You might recognise them in the list upstairs. They’re the big companies that own much of the music we hear every day. Not only popular music of our time, but much of the music made throughout the 20th century. Everything that’s not in the public domain, by and large, is owned by these five companies. I had to negotiate with all of them; SONY/ATV, Albert Music (formally Albert & Son an Australian company acquired by BMG Rights Management in 2016), Hal Leonard Australia, Warner/Chappell Music (who own 50% of some of my own music and will do so for more than 70 years after I have died) and TRO Essex Music Group.

The agreement

It took some time to reach each of the publisher’s representatives. Some were on leave, another had moved on. Some were cordial, others were not. As their quotes trickled in I replied with deeper appeals, describing why it was important to support our film.

It was evident, apart from SONY/ATV, no one was interested in our film, why it was made and for whom. SONY/ATV kindly offered to reduce their fees by 50%.

Without any leverage within Australia’s Copyright Act, we had nowhere to turn. Australian copyright law does not recognise the reuse of copyrighted material within the not-for-profit cultural development context in which this film was made.

Eventually, all up, including SONY/ATV’s discount, I had quotes totally AUD $11,000 covering the right to synchronise their music to our film. And the makings of a three-year agreement. This included:

• a limited print run of 100 DVDs only

• no theatrical release of the film (which I had not sought anyway)

• screenings at film festivals in Australia only

• no international film festivals nor public screenings

• no trailer

• no broadcast rights (which I had not sought)

• no video-on-demand rights.

If we wanted to pursue rights to screen the film overseas or have it available on the Internet we would need separate agreements with additional synchronisation rights fees applied. In addition, with the expiration of the agreement after 3 years we would be required to pay another $11,000 for each agreement thereafter. Should we not seek an additional 3 years all remaining DVDs would have to be destroyed and no public screening would be allowed whatsoever. Even if we could find this kind of money there were too many limitations bound to the use of This Choir Sings Carols, a film that was never intended to be produced for commercial release. Had it been a commercial production it may have been possible to recoup these costs.

Okay, perhaps we could’ve crowdfunded these costs, but if we did I wanted to let the community know where their money was going. I asked each publisher what percentage of these fees will reach the songwriters or their estates? Mostly they replied describing this information as confidential, but they made the point that they had administration costs to cover. SONY/ATV went so far as to say that given the discount it was likely the fee would cover their administration costs only. That’s THEIR administration costs in administering a proposed agreement between them and us. Do keep in mind, dear reader, just how much work this humble filmmaker, or any other filmmaker for that matter, undertakes prior to the acquisition of synchronisation rights. If This Choir Sings Carols was a film funded for theatrical release or broadcast these costs would be budgeted for.

Regardless, representatives from the Australian Writers Guild and the Australian Copyright Council argued that we, the City of Whittlesea and I, should have budgeted for synchronisation rights. That’s all well and good, but most of the projects I’ve worked on with local government are community led. In this instance the community determined which songs were sung in the choir, the kids I had mentored chose many of the shots and songs we would include and I spent weeks massaging the entire experience into a 30-minute film.

We can not budget for the uncertain, the unexpected, the spontaneous. Besides, the point I continue to make is that This Choir Sings Carols was never intended for theatrical or broadcast release. It was never intended to generate income for any of the filmmakers or co-producers.

Yes, I was commissioned to lead the production and mentoring process and eventually edit the completed film, but even my fees were not commensurate with professional fees set out by the Media, Entertainment and Arts Alliancethat most commercial productions adhere to. So long as I can cover my costs and enjoy Christmas with my granddaughters, the stories I have the privilege to film and share far outweigh any commercial imperatives.

Re-editing and antiquated copyright laws

In August of 2018 with support from the City of Whittlesea and individual donations made through the Australian Cultural Fund, I completed an entire re-edit of This Choir Sings Carols. Two years since the film was first completed it can now be seen anywhere. In fact, you can watch it now.

In re-editing the film I removed every single copyright-protected song. That’s why you won’t see the choir warm up with Song of Joy by Waldo De Los Rios and Ross Parker which, incidentally is an adaptation of Beethoven’s Ninth Symphony, a piece of music that is in the public domain and therefore free of copyright. In the original edit, you would have heard two snippets of Song of Joy, 31 seconds all up, amounting to a total of $500 in synchronisation rights.

You also won’t get to see how much a ukulele troupe, formed on meeting each other at Christmas choir rehearsals, enjoyed playing the 1957 classic Jingle Bell Rock by Joe Beal and Jim Boothe. I’d cut out an entire 18-second scene. Curiously Jingle Bell Rock is based on the infamous Jingle Bells (available in the public domain) and also makes a reference to the Rock Around the Clock (Max C. Freedman, James E. Myers), a popular song from the 1950s. Like Song of Joy, it’s not entirely original. It’s a kind of remix protected by Australian copyright law.

Most of the copyright-protected songs were sung at Christmas choir auditions. Each year choir members are invited to audition one song that they might sing in front of a live audience. Imagine singing a song of your choice backed by a 60 piece choir and the Diamond Valley Brass Band? It’s part of the choir’s annual performances that soloists are backed by both the choir and a brass band. I asked for permission to film these auditions. It was a unique opportunity to see how passionate choir members were about the songs they had chosen to audition with. Everyone had scoured their CD and record collections, and I suspect Spotify and YouTube accounts for songs about Christmas. No one, particularly the children, had been thinking about copyright.

This is where the Australian Copyright Act starts to look like something old, antiquated and not hip to the amazing, absolutely mind-bending changes the Internet affords us all, from the bizarre to the yet to be created. You see, both the Australian Copyright Act and the expectations of publishers do not coalesce with the rapid changes taking place in how people find new songs, and how some would want to sing them. Like so many of the people who auditioned for solo parts, they’d found lyrics on the Internet, they found chords and even backing tracks produced by fan musicians there. With access to all this information singers turned up to auditions fully equipped with the songs they’d chosen, lyrics printed and backing tracks ready to play in every conceivable format.

Strict adherence to inflexible copyright laws would stifle the influence this music has on individuals, families and the communities they would want to sing them to and the films we want to make about them. Which is why I also had to edit out two sisters who had auditioned with John Frederick Coots and Haven Gillespie’s Santa Claus is Coming to Town, first sung on radio in 1934 and still not in the public domain.

The original film had also included a song by John Lennon and Yoko Ono. It was the one song I thought we’d have trouble clearing, not all of them! Happy Christmas War is Over was heard twice in the original edit of This Choir Sings Carols, over two minutes all up totalling $2500 in synchronisation rights.

This is a lot of money to simply describe how important Lennon and Ono’s song had become to the entire choir. Remember, it was October 2015 when we commenced working on this film and Australians were coming to terms with politically motivated push-back against asylum seekers, we still had troops in Afghanistan and there was seemingly no end to the so described war on terror.

But, lo-and-behold, all was not what it seemed about this song. Happy Christmas War is Over was penned with original lyrics by John and Yoko, but set to the 18th century traditional English sporting ballad known as Skewball, popularised by Peter, Paul and Mary in 1963. The earliest known recordings of Skewball date back to the 1930s. It had been sung by American prison chain gangs as well as folk and blues legends Leadbelly and Woody Guthrie. Skewball is in the public domain, but Happy Christmas War is Over is not. Even so, we still have to cough up with $2500 if it was to remain in our film.

What makes our film different?

Straight up, what the First Impressions Youth Theatre, the City of Whittlesea and I had set out to was to document a unique community and cultural event. In doing so we revealed heartfelt, and often personal community stories that had not even been known to the members of the choir themselves. They met annually and everyone looked forward to welcoming newcomers and seeing each other again. But many of the stories that emerged through the filmmaking process were previously unknown to anyone.

Who could have known that Con, a self-confessed choir-holic, is illiterate, suffers from depression and had been recovering from chemotherapy? Fred, the oldest choir member, 94 at the time, began singing after his wife had died and Sylvia, who sought asylum in Australia, found a community that accepted her regardless of where she’d come from. Since joining the choir she told us that she felt part of, not apart from the community.

How This Choir Sings Carols was made also makes it quite a different film to those that music publishers would generally deal with. The film was originally conceived as a mentored production. Members of First Impressions Youth Theatre wanted to learn how to shoot a documentary and the Christmas Carols Choir wanted their 2015 performance recorded. And so it was that a small group of young folks from the theatre group were teamed up with established creative practitioners Katherine O’Donnell, Matthew Berka and myself. They were given a mix of domestic and semi-professional equipment to work with and some training. They participated in several hands-on workshops which involved filming the choir from the get-go and we hammered out a bunch of questions for our interviewees.