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Copyright usage on The Teddy Bears Picnic

 
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Confused1977
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PostPosted: Sat Oct 29, 2016 8:52 am    Post subject: Copyright usage on The Teddy Bears Picnic Reply with quote

I am looking to produce a 5 min short film to be released online (youtube). For a project I have been developing for a while, finally deciding to make a leap into financing a short to build interest/funding for a potential feature.

In it I want to use the song "The Teddy Bears Picnic". I was looking at using the original 1932 Henry Hall recording. To have the audio recorded off a gramophone. The title of the short was to be "Teddy Bears Picnic".

So this is where things get confusing and hence my query.

It's a complicated song as the melody was written in 1907 by John Walter Bratton (1831-1947) and lyrics added in 1932 by Jimmy Kennedy (1902-1984).

50% is owned by Warner (guessing lyrics) and 50% Sony (melody). I have been in communication with both, whatever one party charges I have to match the highest rate to both (mfn with copub).

The price went from ""If it's for YouTube only and it's not branded there shouldn't be any issues"", to a reasonable (but not cheap) sum, to then doubling if the title of the short was to be "Teddy Bears Picnic". As "This makes things more difficult to approve because don't want the song to seem like it's directly associated".

The other party has said, it's fine and if i re-record (cover) it and not alter anything, there would be no charge and don't see an issue with using the title "Teddy Bears Picnic". I then queried this with the other party and they have still said Re-Recording or not the suggested fee is X, as I'm using the title "Teddy bears picnic" (which would actually about £100 less than just use the masters).

All this is pending approval! Which I'm concerned I wont get it due to the nature of the story. Im worried Ill be damned if i do and damned if i don't. If one party doesn't like the treatment and refuses approval after I've agreed to a fee. I will then have major trouble so I need to look for possible work arounds regardless and it's just a case of being cheap/cutting costs but I really want explore all options to get some back up plans.

A) Can they copy right "Teddy bears picnic" usage?

B) Can they Do a cease and desist if I just re-record it and use that version of my own? one has said "we would SUGGEST the following fees”. If I title the film and then use the song within it, am in danger of deformation, if the film is considered inappropriate for children, who they consider the song's primary audience.

C) If I re-record JUST melody NO lyrics and use the title "Teddy Bears Picnic". Would this be acceptable? Circumnavigate one party involvement as the Melody is called "The Teddy bears Picnic", before the lyrics where added later. I have original sheet music copyright 1907 by M.Witmark & Sons. So would that violate copyright/licensing laws?

D) If I paid the lyrics people the X amount but re recorded it would I then not have to pay the melody people? (effectively halving costs). Or would this not work still because of the mfn.

E) Does the fact that the song is "The Teddy bears picnic" and i want to call the short "Teddy bears picnic" alter anything. Are there be any title abbreviation loopholes? like Bears' apostrophe or "The Teddy bears picnicSomething”, “Teddy bears Something”, “The bears picnic”, “Teddy bears” or simply “Teddy”.

F) Where do I stand having just the melody playing on something like an old music box?

I spoke to one about the possibility of the Melody entering into the public domain next year. but they said it never happens. I don't want to spend all the time and money and have its hit with a cease and desist from a giant corp with lawyers paid more per hour than most short film budgets. I want this to be above board as possible to appeal to backers beyond just the short. Someone mentioned E&O insurance, not sure what that is? Would a lawyer need to go over it all legal to make it secure?

I want this to be above board as possible to appeal to backers beyond just the short.

Any help is Incredibly grateful, Thanks!
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Confused1977
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PostPosted: Sat Oct 29, 2016 9:57 am    Post subject: Reply with quote

Thought of two other points.

G) If I pay for the rights to record my own cover version, can X dictate, block the usage of it in the context of a film?

H) What if I take the original Melody and write new Lyrics?
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AndyJ
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PostPosted: Sun Oct 30, 2016 11:01 pm    Post subject: Reply with quote

Hi Confused1977,

The problem with questions like yours which relate to specific works is that it is all too easy to become side tracked into researching at too detailed a level!

Anyway, before attempting to answer your specific questions, a bit of background is probably in order.

There are three different types of copyright operating here: a musical work, a literary work (the lyrics) and a number of different sound recordings. And we are dealing with, in part, US copyright, because the two companies which claim to own the rights are based there. Or at least it is likely that Warners and Sony are dealing with their licences based on the US copyright situation. I will deal with the implications of this for you in the UK in a moment. But first, two words of caution. Warners in particular have demonstrated a remarkably cavalier attitude to claims they have made about some works in their catalog. I think the comment you received to the effect that music never enters the public domain, is fairly typical of the attitude that, by one method or another, the large music publishers (and record and film companies) do their best to extend copyright for as long as possible. Warners came unstuck recently over their claim to hold the copyright in the song Happy Birthday from which they had been earning millions of dollars from licensing. The second word of caution concerns the way in which copyright terms in the USA used to be calculated. This is a notoriously complicated area and depended on a number of so-called formalities such as registering, then re-registering copyright and displaying the correct copyright notice on the work in question; failure to follow these steps meant that copyright would not even have existed in the first place. Add to this the fact that, in this case, the music was created in the USA and the lyrics in the UK, and you have a recipe for the sort of complicated mess you have already discovered.

Let's start with the music. As you mention this was composed by J W Bratton who registered it for copyright purposes on 8 Jan 1907 with the Library of Congress.

He then sold the copyright to the New York music publishers M Witmark and Sons, who were subsequently taken over by Warner Music. This registration would have meant that copyright in the music would last initially for 28 years (that is, until 31 Dec 1935) and if it was re-registered during the 27th year, this would have been extended for a further 28 years (ie to the end of 1963). However I cannot find a record of the re-registration in either 1934 or 1935. But, either way copyright in the music would have ended at the end of 1963 at the latest under the old system, and would not have been revived by the 1976 Copyright Act which introduced the concept of copyright terms in the USA being based on the lifetime of the author, as it had been in Europe for at least a century.

Jimmy Kennedy's lyrics followed many years later in 1930. Kennedy was working for a music publisher named Bert Feldman when a pantomime producer asked for some words to go with Bratton's music. Kennedy wrote the well-known lyrics and the song was included in a pantomime in Manchester later that year, but the lyrics were not published in sheet form at the time and lay around gathering dust until, in 1932, Henry Hall's arranger, Tony Lowery, visited Feldman looking for a song suitable for a broadcast to children and Kennedy unearthed the lyrics. However at this stage there was no formal agreement with Bratton or his publishers to use the music. Lowery produced a new arrangement of the tune and Henry Hall broadcast a performance of the song on his BBC programme. Due to the popularity of the broadcast Henry Hall subsequently made a studio recording of the song that was issued as a record which went on to sell over 4 million copies. This new arrangement of the music may be significant, because if it was sufficiently novel, a new copyright in the music may have come into existence at that point. If so, then this new copyright (created in the UK) would have run for the lifetime of the composer plus 50 years (the UK term at that time) meaning that the new copyright term would have run until the end of 1997, but because the post morten element was extended by 20 years in 1995, this possible new copyright will not expire until 31 Dec 2017. However it is far from certain that a new copyright was created by Lowery's arrangement - although no doubt Warners will argue this just as they did over the Happy Birthday song.

The story with the copyright in the lyrics is more straight forward. Kennedy was British (born in Northern Ireland) and wrote the lyrics in England and so the term which would have applied to his lyrics was his lifetime plus (after the 1995 change in the law) 70 years, meaning that the lyrics will remain in copyright until 31 December 2054. Interestingly, because Kennedy gave the lyrics to Lowery without first getting permission from his boss Feldman, he was denied a writing credit and any royalties for the song until Feldman died in 1945. Due to this, for many years people believed that Bratton had written both the words and music since his was the only name to appear on the early sheet music.

And then there is the copyright in the various recordings of the song. Copyright (in the UK) lasts for 70 years from the date of publication, meaning that the Henry Hall recording is no longer in copyright, but of course that does not mean that the recording may be freely used as the copyright in the lyrics, at least, remains extant. The duration of copyright for sound recordings (usually referred to as phonograms) in the US is not really relevant here as you don't mention wanting to use any solely US recordings.

So turning to your questions.

A. Copyright exists to protect an author's work from being copied without permission, so yes if Warners/Sony have a legitimate claim to the copyright in the words and music, they can deny permission for the song to be used.

B. Assuming the legitimate claim already mentioned, then yes either publisher could issue a Cease and Desist letter in respect of the rights they claim to own. However there is no copyright in the song's title and so you can freely use that in connection with your film. Assuming you obtained a licence to use the song within your film, then the rights owners are within their rights to stipulate how the song may be used, and if you were to flout these terms, you could be sued for breach of contract. I don't think defamation would ever enter into it.

C. I am fairly sure that copyright in the music has expired, and if I am right then using the music without the lyrics, but with the title would be perfectly acceptable. You need to challenge Warners to provide evidence of their assertion that the music copyright is extant. Since the music was first published in the USA, UK law will not enforce a greater term than is available in the country of origin - meaning that the publisher cannot try to apply the UK's lifetime plus 70 years to John Bratton's work.

D. If I am right about the music being out of copyright, then you certainly should not be paying for a licence to use the music. So yes, paying just for the lyrics would be the best option.

E. As I have mentioned the title is not subject to copyright and so, subject to any licensing term, you are free to use what ever title you wish.

F. If the music is out of copyright, then you can play it in any form you wish. Indeed if you have a copy of the original sheet music and perform that on what ever instrument you choose, there would be no copyright infringement even if the Lowery arrangement did somehow create a new copyright work.

G. If you want to do a cover of the lyrics, you will need a licence, and as already mentioned that licence can include any terms the licensor deems appropriate. If as I suspect you don't need a licence to use the music then you can make a new recording of the music.

H. Again, assuming the music is out of copyright, then this would be fine. Noel Coward produced a version to the lyrics which involved Teddy Boys, but I think you need to make sure that any new lyrics are either sufficiently different from Kennedy's lyrics that you cannot be said to infringe them, or you set out to parody the original words, in which case you would be protected by the new parody / pastiche exception.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Confused1977
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PostPosted: Mon Oct 31, 2016 10:23 am    Post subject: Reply with quote

Thank you so much for this information AndyJ.
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PeterMillett
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PostPosted: Thu Feb 02, 2017 8:03 pm    Post subject: Teddy Bear's Picnic Reply with quote

How did you get on with your request from Sony/Warners? From what I gather the instrumental version is 100% in the public domain.

Cheers

Pete
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Nick Cooper
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PostPosted: Wed Feb 08, 2017 1:31 pm    Post subject: Re: Teddy Bear's Picnic Reply with quote

PeterMillett wrote:
How did you get on with your request from Sony/Warners? From what I gather the instrumental version is 100% in the public domain.


It's probably based on the reasoning that since the melody was by John Walter Bratton, who did not die until 1947, it remains protected in the UK and Europe until the end of this current year. This notwithstanding Andy's observation that as a work first published in the United States, this may not be enforcible.
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PeterMillett
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PostPosted: Fri Feb 10, 2017 10:01 am    Post subject: Reply with quote

Cheers Nick.
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