Nina Paley No Longer Sings the Copyright Blues

Blog: http://blog.ninapaley.com

Sita Sings the Blues: http://www.sitasingstheblues.com

Benson: Copyright Chat is a podcast dedicated to discussing important copyright matters. Host, Sara Benson, the Copyright Librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues that are relevant to their daily lives.

Welcome to Copyright Chat. We have Nina Paley with us today in studio. Nina Paley is an American cartoonist and animator. She directed the animated feature film, Sita Sings the Blues. Because of obstacles in clearing the sync rights for the music recordings in Sita Sings the Blues, Paley took an active part in the free culture movement. She is an artist-in-residence at the QuestionCopyright.org nonprofit organization. In 2012, she was a special guest in the international conference CopyCamp in Warsaw, and she won the Public Knowledge Organization’s IP3 award in 2010 for her work in intellectual property. Welcome.

Paley: Thank you.

Benson: And great to have you here, and you are living in balmy Urbana.

Paley: It’s balmy now. It’s like 33 degrees today.

Benson: I know. This is balmy. It was negative 12 the other day. So welcome, and you have a really interesting story because you didn’t come into copyright the same way I did, from a fascination with copyright laws and all that. Why don’t you tell us how it came to be that you became a copyright advocate?

Paley: Well, I had always believed in copyright as a young person drawing things. When my stuff first got published, any well-meaning older person would tell me about how important copyright is and how valuable my intellectual property is and how I must protect it. Intellectual property, Intellectual property. And it was very exciting to think that I was making property. Some valuable thing that was worth big bucks, you know, that people would trade and fight over. I never really thought what intellectual property meant or how that word came into use. I just thought, ooh, this is my property, I’m making properties. So I was groomed into it like everybody else, and for years, I just thought copyright helps me, I’m a professional artist. Yay, copyright, and I didn’t question it until Sita Sings the Blues came along. It wasn’t when I released Sita Sings the Blues. It was when I started making Sita Sings the Blues because I knew that this historical music I was using was crucial. It was crucial to the point of the film, and when I talked to experts about it, they pretty much universally said, just don’t use that music, just don’t use old music, independent filmmakers can’t use old music, it’s a mess, just get new music, don’t bother. And I mean, at first, I was like, oh, I can’t use the music and tried some other way, but it was like, I was making a film based on what my muse was telling me to do, basically, and my muse doesn’t respect copyright. It was, I was not inspired by it. How can I be inspired by something that I have to make myself to simulate something. These were authentic songs from an authentic historical period that carried important meaning and made a point to the film. So I decided I was just going to use this music, and let the chips fall where they may. I did contact the Electronic Frontier Foundation, and they put me in touch with American University, the Samuelson Intellectual Property Law Clinic, and I worked with them, at least figuring out the provenance of the song, songs. They worked very hard to try to figure out who owns what, and, of course, every song was owned by multiple corporations, weird percentages depending on what territory you were in.

But I still, even then, making the film, I still thought, well, this is a pain, and it’s silly, and copyright lasts too long.

But I still didn’t question fundamentally copyright. I just thought it lasts too long, and then when I was trying to release the film and going through the process of clearing these licenses by contacting these corporations, then that horrible year really got me to deeply question how the system worked because the corporate owners are under no obligation to talk to you.

People say, oh, just ask for permission, as if they’ll respond to you. They don’t. I learned that the only way they will respond to you is if you have like a highly paid lawyer that they know, someone in the industry. So you have to pay to even begin the process. When I did begin the process, which was expensive, the first thing the corporate owners did was say, before we will even talk to you, have to pay us money for a festival license. It was like, you know, and then you have to sign this contract that says you won’t make any money from it, and you can only go to festivals for one year, and this is a condition of us talking to you, so I had to pay, I don’t know, like a thousand dollars per song to talk to them and sign something that says that I promise not to make any money, which was really weird, because they were trying to get money from me, so you would think if they wanted money, they would be allowing me to make money so that I could give them some money.

Anyway, I was doing the festival circuit and talking to other filmmakers and learning how many films just didn’t get made because of music copyright issues, all for stuff that should be in the public domain. Not all. But much of which should have in the public domain, which was an issue for the old Annette Hanshaw songs I was using.

And I had this film, and I was like, whether or not this film goes out in the world is at the mercy of these people who work for corporations that have zero obligation to make it legal. So I have an illegal film in a corrupt system, and it was clear that that system favored the corporations because everything alternately is owned by five media corporations, who also happen to own movie studios, you know. Sony, they release movies, and Sony’s movies have this old stuff in it. Like I remember Sita Sings the Blues came out around the same time as the movie Wall-E, and Wall-E had the song, “Hello Dolly,” and you know. It’s so sentimental. Oh, it’s such a good movie. Oh, look at that clever use of the music, and like you only get to do this if you’re in bed with, only corporations get to do this, right, like no individual artist gets to be all clever with their use of music legally. Anyway, that’s what got me into it.

Benson: Well, I found it interesting because, so I’ve read many stories about your story. I guess metastories, stories someone else wrote, and the way I understood it, was that you didn’t know about the copyright issues until you published the movie, and then, you got hit up with all these lawsuits.

Paley: There was never a lawsuit.

Benson: All right, interesting. So—

Paley: I was just trying to be a good girl and follow the rules. I was following the rules that were set out to me, that everyone told me benefited artists.

Benson: And then once you published Sita Sings the Blues, then what happened?

Paley: Well, I didn’t publish Sita Sings the Blues until I had actually cleared these rights. I thought about it a lot and decided I did, in the midst of this copyright nightmare, clearance nightmare, I decided that I would give the film away for free, but I wanted it to be legal to give away for free, and that cost me like fifty thousand dollars in licensing fees to make it legal to give away for free, and even that is contentious, right, I could still be sued over that because I am required to pay additional fees per number of copies sold, like for five thousand copies sold.

And way more copies have gone out in the world than copies sold, right. I distribute it for free, hoping, actually, that they won’t be copies sold because they have to be paid for. And in the movie industry, it is customary to not count promotional copies. So I was like, all right, it’s going to be promotional copies. Everyone’s downloading their promotional copy. I have paid additional fees for the D.V.D.’s that I have sold, and I have licensed it to distributors, who also have to pay for five thousand copies sold and on the Sita Sings the Blues website, there is a list of who owns what, how much you have to pay per copy, and where to send it to, and I even encourage people to, if they sell even one copy, to pay, you know, five cents to this corporation and twelve cents to that one according to the rules on the website, if they want to, you know, we called it total compliance. If you really want to comply with copyright law, this is how you do it. Every time you make a copy, or every time you sell a copy.

Anyway, what was the question?

Benson: Well—

Paley: What happens you publish it?

Benson: Right.

Paley: Right, so my year of Kafkaesque copyright nightmare made it clear to me that I would do better in the film, and the film would do better, if I freed it.

So that’s what I did.

Benson: So my other understanding, and again, I’m learning that these may not have been correct, and these were just understandings that I got from various websites, so you know fake news alert, but one of my other previous understandings was that the issues you were having stemmed from state laws covering musical recordings pre-1972. Is that, that’s not correct?

Paley: It was a kooky. . So there was this aspect of it where the recordings of the song were in the public domain everywhere, except New York State, because some weird precedent had been set in New York State about recordings, and it was weird thing where nobody bothered challenging it, right, like it seemed like, well, federal law should really take precedence over state law in this case, but nobody had challenged it, and I decided, well, ok, I’ll just do this, maybe, you know, if I get sued then this will be the case that challenges it but I didn’t get sued. And I think that the understanding of the rules has changed since then. I think I’ve come across some articles that say that this is outdated now, but this was in 2008.

Benson: I don’t think it’s outdated. So 1972 is when sound recordings were brought under the federal copyright laws and so pre-1972 people are in this weird thing where it’s state-by-state, and so I don’t think that’s incorrect. But I do think there been more there’s been more litigation more recently, and so what you were paying for was for synchronization rights in order to put the sound and sync it up with movement in the movie.

Paley: Right.

Benson: Okay, interesting.

Paley: There’s like four sets of rights associated with any song, and one of them was the recording, that again, the recordings were in the public domain everywhere, except possibly New York State. I was like, eh.

But yes, the sync rights were something else, and it was weird that like some of the parts can be in the public domain, while some of them are not in the public domain.

Benson: Yeah, and I think that this is what makes sound and music so complex because other parts of copyright, it’s pretty straightforward, but there are so many different musical rights. There’s public performance rights. There’s composition rights. There’s sound recording rights, and then there’s pre-1972 and post-1972, and then you’ve got sync rights. You’ve got mechanical licenses. You’ve got this and that. There’s so much going on that it boggles the mind.

Paley: Oh I paid mechanical licenses for the CD. The audio CD.

Benson: Because you have an audio CD that goes along with it.

Paley: Right.

Benson: Okay, interesting.

Paley: And that was funny because CD Baby was one of the only options at the time for distributing a CD.

They had no concept of public domain. So it was like, yes, we have mechanicals, but, you know, this and that is in the public domain, and they were like, what, no. And it required like a lot of correspondence with them, and Karl Fogel of QuestionCopyright.org was actually corresponding with them until finally they relented and let us, you know, and acknowledged there was pubic domain material on this CD.

Benson: So what I find most interesting from your story, I guess, is mostly what you’ve done after that experience, because it seems like that experience was kind of pivotal for you as an artist in terms of how you interact with the public and your own copyright rights. As you said pre-Sita Sings the Blues era, you view yourself as the author. You have these awesome rights, and you could make money, and now it seems like you give away most of your work for free. Is that right?

Paley: Yeah, but I’m absolutely the author. There’s just a difference between authorship and ownership. So you can only own property, and art just is not property. Objects are property. You know, when I pay a lot of money to have  D.V.D.’s printed, those D.V.D.’s are my property, and I sell them, and if you, you know, take one from me that represents a certain amount of money that I spent that cannot be, like, I can’t get back. So yeah, property has certain limitations around it, such as limited number of atoms that it’s made from or some sort of physical component to it, but patterns are not property.

Benson: Well, I mean, the United States Supreme Court just had a case on that, and they kind of said it was.

Paley: No, they do, and they say all kinds of things, you know.

Benson: So yes, you’re taking issue with that, and I guess, explain to me what, how you came to this decision. I know you have a cartoon out “Mimi and Eunice,” and did you designate that CC0, and I’m not sure what the license is on that.

Paley: Okay, so, after Sita Sings the Blues, that was the dawn of a decade of copyright experimentation, that I’m still involved with, because once you become a copyright abolitionist, and you’re an artist, it’s like, well, how do I get my work out? And Creative Commons offer some alternatives, but it is not a panacea. There are problems with all Creative Commons licenses. There are problems with all licenses because all licenses are built on copyright. So copyright law is the bedrock of all of this, and if you fundamentally see copyright law as corrupt and dysfunctional, building more licenses on top of it doesn’t actually solve the problem. It does make it easier for me, in some ways, but Mimi and Eunice is, I think it’s, yeah, I think it’s CC0. I go between CC0 and CC share alike. So I like to share alike license. I originally released Sita under the share alike license because that seemed to, it was like an attempt to build a free ecosystem around it, right, like do whatever you want with this, remix it, fold it into something else, and then release the next thing under a free license.

That’s a nice idea, but then there’s this whole problem of well, what happens when somebody, people are so confused about licenses even if they really mean well, and they release it under something else. One of the most common things, one of the most common bits of fake news around Sita, just because people don’t understand copyright, was they said, all these articles said, Oh, when she releases it, as long as you don’t use it for any commercial purposes. And it’s like, no, go ahead, use it for commercial purposes. I am pro-commerce, use it as commerce, but people that remixed it would frequently release it with noncommercial restrictions, and it was like, do I have to, like, email every single person that does this, you know, every time I find an example of this of it being relicensed under some sort of restriction, do I have to bother the person, and what I really want to be doing is encouraging everybody to share it, and do I really want to be copyright police or free-license police to make sure everyone’s doing it perfectly? It was like, no, I don’t. I don’t care. I don’t want this to have to be my business. So that was when I decided CC0 was more appropriate for me, even though people can enclose, you know, they can put copyright around reuses or redistributions. There’s no perfect solution. What was I answering? I’ve gone off on a tangent.

Benson: I was asking if you were licensing “Mimi and Eunice” CC0, and I–

Paley: Oh, right, right, right. Oh, right. So for that, for Mimi and Eunice, because the Creative Commons licenses were causing all these problems, because there are so many Creative Commons licenses, and people don’t really know what the difference is. I thought, well, let me try something that’s not a Creative Commons license. I’ll just sort of make up something that’s not even a license, right, because I don’t want it to be based on copyright. I thought, just a message, and that was copy heart. It was a little heart that says, “Copying is an act of love. Please copy and share.” And I thought instead of a copyright symbol, I’ll put a heart on it. Other people have tried things like this, right. There are many idealists that keep trying to make some alternative to copyright, even if it’s not legally enforceable, and in fact, it shouldn’t be legally enforceable because the law should have nothing to do with this.

But yes, so “Mimi and Eunice,” it’s a copy heart. It was just a little heart.

And but it’s also, it’s also CC0, however, for people who want that. I don’t know, there’s not, you can’t really win this copyright regime. You can’t get out of it. It’s not that you can’t win, you just can’t escape.

Benson: So okay, here’s a question, and you say you’re not anti-commercial necessarily, and how are you making your money? I mean, I saw on your Sita Sings the Blues that you take donations to help cover the costs of all the licensing. What other projects are you engaged in, because obviously you have to live.

Paley: Yeah, so I did a couple of reports the first couple years Sita Sings the Blues was out in the world where I documented where my money was coming from, because Sita did like really well, much better than I expected it to.

And I documented, you know, how much D.V.D. sales of my own, of like the D.V.D.’s I distribute, how much money am I getting from downstream distributors people have licensed it to, how much in donations, how much in speaking fees, blah blah blah. It all, I’ve got so much more money from speaking fees and direct donations, so and it was a pretty successful D.V.D., too.

But it seems like the best way for me to get money is for people to simply give me money. It’s like a really simple system, right, you cut out the middleman because when you have other people distributing your stuff and all these deals, they take a huge cut, and, you know, they have downstream people taking a cut, and the cut that ends up going to the author is really small, and it’s almost laughably small. Whereas if somebody gives you a direct donation, you get all of it, except for, you know, whatever the cut PayPal or credit card company or whatever online service you use is.

Benson: I guess I’m trying to think broadly here about this model as a model for publishing, because we have the same issue in open access publishing. It’s like, yay, it’s great, but we have a lot of work going on behind the scenes, how do we make our money? And would this be akin to me setting up my own personal website and saying, hey, here’s some of my research, if you like it, give me money?

Paley: Yeah, I think so, I mean, I donate to, I mean, not much, because my income the last couple years has been extremely low, and the reason for that is that I’m working on a new movie, Seder Masochism, and I’m putting like zero effort into fundraising, and I’m also at the moment, I’m like, I’m a war tax resister, and I’m on Medicaid, so my income is below a certain level which allows me to have health insurance for now. That may change. This has only been a couple of years because four years ago, I did a Hollywood gig that made a lot of money, and the idea was that I would live on it, if necessary, so I have stuff stashed away in savings.

Right. What was my point about that with the money?

Benson: Just, you know, as a model for other folks.

Paley: Oh, right, right. So the issue with any of this, like, if my work is out there, and people like my work and can see my work and know how to reach me or how to send me a donation, that works really well. The scarce resource in all of this is attention, and the problem for any artist or anyone that’s publishing anything is, how do you get attention?

There is no guarantee you will get the attention, so I am fortunate in that sometimes my work gets attention, and when that happens, it’s like great, you know, like I get more fans, more people know about me, and so when I do really something, there is some attention available for it.

I don’t know, you know, if I were completely unknown, what I would be doing. Most of my work, through my whole professional life, has come from commissions, so in terms of the work that I do that I care about for myself, very little. I mean this is over like a 25 year career. Not much of that comes from royalties, but a great deal comes from people just commissioning stuff. And that is, I think, how most artists make money.

But yeah, I don’t know, in publishing, if you can get the attention, that model works great.

Benson: Well, it seems to work for certain fiction writers who maybe self-published or Amazon and then become a bestseller on Amazon, and then they pick up a publisher, and then it turns into a movie or something like that, but again, that’s one in a million.

Paley: Well, that’s the copyright model, right, having it turned into a movie or getting a publisher.

Benson: Oh sure, yeah, that’s not having your personal web page and but it’s even that is, I mean, even the commercial model is pretty hard.

Paley:  Well, the commercial model is much more lottery-like, I think, than the free-sharing model. A lot of artists and authors use Patreon right now and even some journalists.

And I think it does work for specialty things people that do really specialty writing for a particular niche. I do donate, that’s what I was qualifying with my low income this year, right, so I don’t donate a lot but I give donations to like the Internet Archive, right, using the Internet Archive, and here’s some money, you know, there’s somebody that will match it times three, and I think, Oh, I’ll send them some money right now.

There’s some free software that I use, like AdBlocker, right, AdBlocker requests a donation, and then I go, all right, I’ll do that, I don’t have tons of money, but that is quite reasonable. So I do think people do that, and I do think if you add like a little nag message, which I don’t, by the way, like I don’t have any nagging pop-ups when people download anything of mine, it’s completely free, but I imagine if I had some way of adding those, I would get more donations, and maybe when I released my next film, I will try that.

Benson: And so when do you expect your next film to come out?

Paley: Well, I was hoping it was going to come out like now, but I made a rough cut in December, and it just wasn’t quite there, so I am rebuilding a lot of it, and making some new scenes, and maybe in six months? And then I don’t know if it’ll be out, right, because I would like to be in film festivals first, and that means that I would like to at least premiere at a film festival prior to the release, and there’s the fact that I will never actually release the actual film because that would be illegal because the new film is more illegal than Sita Sings the Blues was, so the official version of Seder Masochism will be a very damaged and compromised product because all of the music that I’m using in order to comply with the law, I will remove it prior to any sort of official version that could be sold on a D.V.D. or something. So the real version of this film, with all the music intact, that will be illegal, and I certainly won’t release that.

Someone else might, illegally, it might, you know, someone might get ahold of an illegal copy, and then put it on, you know, a torrent site or something like that, but it is definitely not going to be me.

Benson: Fair enough. So do you have any parting advice for artists who haven’t had your experience with Sita Sings the Blues, and maybe are skeptical about the free culture movement. Do you have any anything to say about that?

Paley: Well, okay, so a selfish thing I can say is, if you’re into copyright, by all means, embrace copyright, because to some extent all artists are competing with each other for attention, and people who lock down their work of copyright are basically making more attention available for me, so I don’t, you know, if you’re into that model, great. You know, go crazy, hold on to it while I’m giving mine away for free.

But I mean, artists…  Advice for artists…

I mean, if you’re an artist, you probably already learned not to listen to other people’s advice.

At least, I hope so, the less you listen to other people’s advice, the better an artist you’re likely to be.

I do recommend people read Civil Disobedience if they haven’t already.

I think many artists do think critically or differently about society and rules of society and laws and things like that. Civil Disobedience is a good read because I am not at all an advocate of flouting the law for its own sake.

But I do think that if you encounter something that is fundamentally unjust, you’ve got to decide what you’re going to do about it, and I consider the copyright, I consider the art that I’m doing actually, since what I’m making is technically illegal art, that is a form of civil disobedience. And when the law says that you cannot make this or that art, there is something wrong with the law, and I am in a position where I can take these risks, like I don’t own any property, back to my low income right, like I’m making an illegal film. And I could have chosen a few years ago to go a different direction and make a lot more money, and buy a house and have this property, but I really want to make this film, Seder Masochism, and one of the decisions I made prior to making it was, I was going to use any music I wanted, and that the film was going to be guided by what was best for the film, and I was going to be guided completely by my muse, and not by my fear or laws or anything like that. So that is the most important thing to me. The less property I own, the better.

Under these circumstances, there’s really not much to get if somebody sues me.

And the fact that I have made these choices puts me in a position where I can do this kind of activism, and everybody can decide what level of risk they’re willing to take. This is a level of risk I’m willing to take.

Benson: Well, I find that really inspirational, and I hope to see some version of your film when it’s out. I hope I see the undoctored version, but I guess I’ll have to go to a festival or something like that, if I want to see it or maybe come to your house watch it in your living room.

Paley: Yeah. We can talk about that.

Benson: We’ll figure it out. Well, it’s been great having you, and I wish you all the best as you work through your latest project and I’ll be sure to link to your blog and Sita Sings the Blues when I put this podcast episode out. Thanks for being here today.

Paley: Yeah, thanks for having me.

Music credit: http://www.bensound.com/royalty-free-music