TELL YOUR PUP YOU LOVE HIM

(UPDATED)    Do you want to enter a contest to write a “hockey anthem” for CBC, possibly taking home 100 grand if you win?

What if you stood to lose much more than that?

What if you couldn’t possibly figure out how much you stood to lose unless you read and understood the fine print? If you’re a musician, how good are you at reading the fine print? Probably not very. (It’s OK – that’s why you’re good at music.) Let me tell you in nice clear terminology what CBC’s contest rules actually say. (I regularized spellings and capitalizations and, rarely, punctuation. If I’ve made any kind of substantive mistake, let me know.)

$100,000 buys all conceivable rights

You may know that:

  • an underlying music composition (you can visualize it as sheet music)
  • a performance of that music
  • a recording of that performance
  • and a synchronization of a recording with a TV show

are all separate, are all protected by copyright, and all have fees that can be attached to them. That’s not the full list of rights that musicians have, but those are the major rights.

The owner of any copyrighted work (usually the author) has other rights, too. By far the most important is the moral right, often referred to by its French name, droit moral. Canada has moral rights and the United States doesn’t. (Here we diverge from the U.S. copyright commentators that have probably influenced you. We don’t have fair use and they don’t have moral rights.)

We get moral rights from the French tradition. Moral rights permit the copyright holder to protect the integrity of a work. Moral rights also permit the copyright holder to be associated by name with the work or to remain anonymous. It is easy to make the case that moral rights are actually the core of Canadian copyright, but most people, who learned about copyright in the context of photocopiers and file-sharing and iPods (and RIAA lawsuits and U.S. Creative Commons propaganda), would find that hard to believe.

I mentioned some of a musician’s rights under law. But if you win the CBC contest, you give up all those rights and all other rights for a payment of $100,000. (There’s one exception, which I’ll get to in a moment.)

  1. CBC is offering $100,000 for the winning theme and all rights in it, as outlined in the competition rules.

  2. The winner’s award to be paid by CBC is for an assignment of all copyright and waiver of moral rights in the composition, including its lyrics, and ownership in the master recording of the entry in the competition.

    Note very well that you explicitly lose your moral rights. And they mean it: Once they own your work, they can and will do whatever they want with it:

    CBC reserves the right, in its sole discretion, to have the theme of any semifinalist, finalist, and the winner, adapted, arranged and/or performed by artists other than those included in the original entry. The semifinalists, finalists, and the winner will be required to sign appropriate documentation confirming the right for CBC to make such adaptation, arrangement and/or performance by artists other than those included in the original entry.

    Did you notice that you could lose the competition and CBC could still have your work rearranged (hacked, mangled, deformed) and played by someone else? (Do you want a Weird Al Yankovic version of your theme? CBC can hire him to make one.) CBC has the right to do that to finalists and semifinalists, not just the winner. And if you’re a finalist or semifinalist, you get nothing in return for giving up this right.

    It isn’t just that you sign over moral rights; you must separately confirm a consequence of loss of those rights.

  3. CBC shall have the right to alter, adapt, separate, edit or make additions to or deletions from the entry for use during the competition in its programming related to Canada’s Hockey Anthem Challenge, in its sole discretion, without compensation to the Entrant(s).

    That’s what happens when you give up your moral right: They can cut up, mangle, change, or ruin your work at will and there’s not a single thing you can do about it.

  4. By participating in the entry, performers will assign copyright in their performance in it to CBC.

  5. Did you know that, just like a major record label, CBC owns your master recording?

    Entrant(s) of the winning theme will receive $100,000… (in total) for an assignment of copyright, and a waiver of moral rights, in the winning theme’s composition, including its lyrics, and ownership of the master recording of the entry.

  6. Entrants agree to waive any and all copyright interest, and any moral rights, of any nature or kind they may have in their comments, entries, and participation, including but not limited to music composed and lyrics written by them, any audio, audio/visual or visual appearances and performances.

    The mention of comments is a bit odd. Presumably nobody can own your utterances, but if you make any kind of “comment” about the contest in a copyrightable form (e.g., you write it down or you record it on video or audio), CBC owns that work no matter where it is located. Essentially, if you enter the contest, CBC owns any posts you write on your blog about entering.

They may or may not pay residuals

It is true that CBC will still pay public-performance royalties. But you’ll only get half of those, the other half going to some unspecified beneficiary in the domain of “minor-league hockey.” So actually, if you win the contest, you’ll be paid $100,000 plus a fraction of certain other performance rights. (This is the exception I mentioned above.)

Do you think that’s a good deal? If so, will you still think that once you learn that CBC does not, at any time, have to live up to the terms of its own contest rules, and can specifically alter the payments made for public performance?

If you’re a semifinalist, did you know that CBC need pay only “a portion of net revenue” of some sales to minor-league hockey? (“The determination and division of net revenue among CBC, minor-league hockey, semifinalists and others will be determined by CBC, in its sole discretion.”) The rules contradict themselves on this point several times, but if it ever went to court, CBC could argue that the least restrictive clause should prevail, i.e., they can give as much or as little of the proceeds to minor-league hockey – and to you – as they wish, not “half.”

CBC can use your work everywhere and forever

If you win the contest, CBC may use your work “during the 2008–[200]9 hockey season, and potentially beyond… [on] television (in the introductions to the pre-game show and the program, before and after commercial breaks, during intermissions, in post-game highlight packages) and in all other media and platforms CBC uses to present and promote hockey.”

That means CBC can use your work on the Web, in commercials, in ringtones, and anywhere else it wants – in perpetuity. Don’t be misled by the three mentions of the 2008–2009 season.

If you’re a semifinalist, CBC can still use your work for up to three years – until 2011.10.09. (You must grant “exclusive licences to CBC to exploit [the] theme for three years beyond the closing date of the competition [to be effective if [you] are not declared the winner].”)

Even if you lose, CBC can use your work “by all available means, including CDs, DVDs, and Internet Web sites (iTunes etc.).” (I love the phrase “Internet Web sites.” Do you know any other kind? They do, apparently. I guess CBC cannot sell HTML files on a CD-ROM under this agreement. iTunes isn’t a Web site; it isn’t even HTML.)

You can’t rely on a music collective like SOCAN

Many musicians are members of recording collectives like SOCAN. (Canada has dozens of copyright collectives, many of which deal with music.) You absolutely may not enter the contest if your entry would fall under the rubric of one of those collectives: “Entrants must warrant that… the theme submitted, including the performance of it, is free and clear of any obligations under any agreement, including an agreement with a music publisher or record label [or] an agreement with a collective.”

Now, I’ve seen lots of mentions, on CBC TV shows and commercials, that certain extremely impressive professional musicians are planning to enter the contest. I don’t see how they will legally be able to do so unless they opt out of their collective representation. And you have to prove you have done that (you “must provide a written waiver… permitting the entry to be made free and clear of any obligations under that agreement”).

They can bury your work

They don’t have to use your music or any of your CBC appearances:

There is no obligation on the part of CBC to use, exploit, reproduce or distribute in any media any entry, theme, program in which an entrant has appeared, or any part of his/her contribution to a program.

In practical terms, this is relevant only to the winner. You win, they buy your work, then they can bury it forever.

Finalists and semifinalists get nothing

The rules talk about prizes awarded to finalists and/or semifinalists, but never specify what those prizes are. As it stands, there seems to be no reward or payment whatsoever for making the finals or semifinals, but you are still obligated to turn over many rights to the CBC.

If you lose, you lose many times over

If you win, your music isn’t yours anymore. It belongs to the CBC. They don’t just “have the rights to it,” they own it.

But what if you lose? What if you’re a semifinalist? You will be permitted to perform your work in public, but so, potentially, will anyone else. Read this sentence carefully:

CBC will grant a non-exclusive licence to the songwriter(s) to perform the theme themselves live in public venues, but not for broadcast or telecommunication, or to offer to the public in pre-recorded form (e.g. CD, DVD, MP3, MPEG, etc.).

The highlighted comma there (after “telecommunication”; it’s one of many troublingly errant punctuation marks in the contract) appears to prevent you from selling a recording of what was previously your work. But actually, that whole sentence could be read as follows: CBC will give you a licence to perform the music publicly, but may do that for someone else, too. Or it may give you or someone else a different licence, one that permits whoever holds that licence to broadcast, telecommunicate, or sell or give away a recording of the music.

Separately, the rules state that CBC will give semifinalists a licence to perform their music in public. (Again nonexclusive.) But broadcasting is prohibited.

Also for semifinalists, you can’t licence your work to a competing hockey broadcaster or Webcaster for three years.

If you don’t even make the semifinals

If your entry is disqualified for any reason, whether you made the semifinals or the finals or neither of those, then you immediately create a slot the CBC can fill. But interestingly, they can fill it using any entrant, including an entrant who also had been disqualified for any reason.

Hence, if you enter the contest, but don’t make the cut (not even the semifinals), you aren’t free and clear. CBC may still call you up from the reserves (it may stop-loss you, in effect) and reinstate your entry. Then all the restrictions in the rules apply to you, not just the ones that apply to an entrant who doesn’t win and doesn’t make the finals or semifinals.

CBC has the power to revive your entry from the dead, and if they do that, you have to live by all the rules that apply to the competition level in which you now find yourself (e.g., the finals or semifinals).

You still have to do promotion

Even if you lose or don’t make the finals or semifinals, CBC may still “require” you to “participate in any activity relating to the Program including, without limitation, recordings, interviews, appearances, promotional, and publicity activities.” Did you book enough time off work for that? Because they implicitly do not have to pay you.

They even own your entry

You lose all rights to your entry: “Applications and entries will become the property of CBC, and will not be returned to applicants. During the competition, entries may be used by CBC, and, with CBC permission, its affiliates, agents, licensees, and sponsors, on any media, without limitation, exclusively.” In principle, this trumps all the limited uses the rules otherwise list. Again: If this went to court, CBC could argue that this least-restrictive clause should win the day.

Also: “Entries may be used by CBC, and, with CBC permission, its affiliates, agents, licensees, and sponsors, on any media, without limitation, exclusively.” You allow your entry to be “used” by the NHL or any CBC hockey advertiser.

And you can’t license your work to “any other radio or television program, or on the Web site of any other established Canadian radio or television organization” until 2008.11.11. (The rules are ambiguous on this front, as they later prevent you from “enter[ing] into any commercial or other sponsorship agreement or arrangement with any person, firm or company… save and except as directed by CBC.” A “commercial agreement” could easily include a licensing deal you sign with someone else.)

Your musical work pretty much cannot include sampling

If you enter, you promise that you entry is “original and do[es] not contain any inappropriate content, including but not limited to content prohibited by law (e.g. invasion of privacy, defamation, copyright infringement).” (They mention this twice.) That means if you sample somebody else’s work (perhaps the original anthem whose rights the CBC managed to lose?), you’d better clear those samples in advance. (You “have the authority to assign CBC the rights requested, and can allow all uses contemplated in these Rules.”)

Now, you have to clear samples anyway, but amateur musicians often don’t know that, or don’t know how, or don’t bother. (This contest is aimed at amateurs: “ ‘The ideal endgame would be a fabulous piece of music composed by an 11-year-old from Red Deer,’ Scott Moore, the head of CBC Sports, said.”)

They can change the rules at will

If you enter the contest, you authorize CBC to change the rules in any way they want for any reason at all: “CBC reserves the right to change the structure, process, timing, duration or any other aspect of the competition at its discretion. CBC reserves the right to amend the competition rules or terminate the competition at any time.” You sign over rights under a deal the other side can change but you can’t.

Also, under some circumstances, they don’t even have to pay the prizes they “promised” to semifinalists and finalists. (Those prizes are not itemized or specified in any way. There appear to be none.)

If you win any kind of award but refuse it, you get nothing – but CBC keeps every right that is listed in the rules.

“In the event of any dispute concerning the operation of any element of the Competition or these Competition Rules, the decision of CBC will be final.” Still seem fair to you?


Other interesting facts

  • CBC pretty much expects its online-voting system to be hacked. They can use their own panel of judges to declare a winner in that case. Those same judges are the only ones who determine semifinalists, not public voting (which “will only be a factor for the producer and judges to consider in selecting semifinalists” [emphasis added]).

  • They seem to want to do an end run around accessibility requirements (yes, I would find that in a copyright contract) by stating that CBC isn’t responsible for “inability to use the Web site.”

  • CBC can defame you on live TV, but you have no recourse if that happens. Essentially, Strombo can call you a pedophile and get away with it.

  • Finalists can be anyone the CBC decides, and specifically need not have been semifinalists.


Where’s the money in all this?

In case you’ve been keeping score, negotiations to retain the original Hockey Night in Canada theme collapsed because the songwriter wanted seven digits for it, not to mention a resolution of a separate copyright-infringement lawsuit. CTV won’t say how much it paid to scoop the rights out from under CBC, but it was surely somewhere close to market value – even if they got a 50% discount, it would confirm the general value of the work.

Put all that together and the price demanded of CBC was probably about $3.5 million. They could have gotten by with a lower payment had they negotiated better, but in any event, in this contest, CBC proposes to secure all rights for $100K plus a few residuals. Public broadcasting at its finest.


Updates

  • (2008.08.02)    I see this posting has been completely ignored by the A-list copyright blogosphere. Geistards™ are ignoring the hockey-anthem contest, I assume, because none of its problems could be rectified by Creative Commons or by eliminating Bill C-61. In other words, the wrong people are affected by this copyright expropriation. Remember who your friends are; the Fair Copyright for Canada acolytes aren’t among them.

  • 2008.08.18    Michael Geist deigned to mention the issue after I pinged him. ¶ Large mention in Maclean’s (not onliné), covered at Tea Makers.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2008.06.23 12:18. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:
http://blog.fawny.org/2008/06/23/hric/

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