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http://blog.stayfreemagazine.org/2005/06/mad_hot_ballroo.html

How did Mad Hot Ballroom survive the copyright cartel?
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When Agrelo and Sewell were filming boys playing foosball after school, Ronnie (right) at one point shouted, “Everybody dance now!”, a line from a C+C Music Factory hit. Incredibly, the filmmakers' lawyer said the line had to be cleared with the song's publisher, Warner Chappell. The price? $5,000.

Answer: by limiting music that played in classrooms, haggling over clearance fees, and cutting out a scene.

Okay, some background: I saw Mad Hot Ballroom a few weeks ago with a couple of friends and we all fell in love with it. The documentary, directed by Park Sloper Marilyn Agrelo, follows New York public school kids in a citywide a ballroom dancing competition. If you haven't yet seen it, you should run out and do so.

One of the things that amazed me about the movie was how the filmmakers were able to clear so much music on an indie budget. Those of you who follow this blog or who read the Untold Stories report know what I'm talking about: clearing song rights for films has become close to impossible for small documentary films, thanks to the exorbitant rates copyright holders demand.

To find out how the makers of Mad Hot Ballroom dealt with copyright clearances, I talked to producer/writer Amy Sewell by phone last month.

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Stay Free!: There's so much music in your movie, I'm wondering: did you think about copyright before you decided to do this film?
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VIEW CLIP #1
Due to the high costs of music clearances, some songs — such as Peggy Lee's “Fever” — were used repeatedly.

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VIEW CLIP #2
This second clip is gratuitous. I'm including it 'cos Wilson and Elsymia are so damn cute.

Amy Sewell: No, and naïveté worked well for me! If I had known all that I had to go through, I'm not sure I would have done it. I read a book about clearances and started clearing the music by myself, but ended up bringing in Mark Reynolds to help. We cleared almost 50 songs before we started filming. American Ballroom Theater, which sponsors the courses and competitions, had a list of songs they use so we took that list and saw what we could clear and for what price. We narrowed that down and went back to American Ballroom Theater and asked them to use only these songs, because source background music can't be edited out easily or cheaply. If a song we couldn't clear — like “Hit the Road Jack” — was playing on a boom box, we would have had to cut the scene.

Stay Free!: Did you license the songs for a particular time period, or did you get them for perpetuity?

Sewell: We first cleared music for two years for festival use, and then went back and negotiated for worldwide commercial use in all media, for perpetuity. It was extremely expensive. For most films, music licensing is 1 to 10 percent of the production budget; ours came in at 45 percent: $140,000.

The biggest problem was granting Most Favored Nation status. [Granting a rights holder Most Favored Nation status requires giving them the highest fee you pay for a comparable song. For example, if Warner Chappell asks $10,000 for a clip but you have to license a Sony clip for $12,000, you'd have to also give Warner Chappell $12,000 if it has MFN status. - ed.] I would only agree to that for the classics. Things like Frank Sinatra hits.

I wasn't going to edit or cut any music, so I would continue to negotiate everything down until we could afford it. I'm sure I annoyed people in the music industry. But the industry should have a different set of standard for documentary films. We're not Applebee's.

Stay Free!: When you explain that this is for a low-budget documentary, does that matter to rights people?

Sewell: They do have discounts but the costs are still heavy. As a businesswoman, I don't blame them for making money. I just think the prices should be fair.

Stay Free!: There's a scene where a woman's cell phone rings and she has the “Rocky” theme ring tone. I noticed that you even cleared that! I would have thought that could be an example of fair use.

Sewell: I thought so too. It's only six seconds! But our lawyer said we needed to clear it. So I called Sprint, which owns the ring tone master rights, and they gave it to me for free because they saw it as product placement. But then I called EMI, which owns the publishing rights and they asked for $10,000. I said no way–even the classics weren't getting that much. Luckily, we were able to get it for less.

Stay Free!: How much did it cost for the average song?

Sewell: It depends on how many entities are attached to it. Our typical total cost for a classic was about $15,000-20,000, split between publisher and master rights. With the Rocky theme, the publishers didn't want to overexpose the song. That was the issue with Ray Charles' “Hit the Road Jack” as well.

Stay Free!: He should have thought of that before he did all those lousy Pepsi commercials.

Sewell: But “Hit the Road Jack” was special for him. His lawyer said, “I don't care if you were the president and had half a million dollars, you're not going to get this song.” There are two songs Ray Charles seldom granted rights to, “Hit the Road, Jack” and “God Bless America.” I love that: “Hit the Road” is right there with “God Bless America.”

Stay Free!: There was also a scene with a TV on, and a commercial was on the TV. Did you clear that?

Sewell: That was unidentifiable, so we had to run it by another lawyer for our errors and omissions insurance. (You have to buy insurance to cover all the things in the movie that might be subject to legal questions.) Our lawyers and the insurance agent agreed that it was fair use, though, because it was unidentifiable and on the screen for less than 10 seconds.

Stay Free!: Were there any other inconvenient clearances you had to deal with?

Sewell: Well, we had to watch out for billboards and Frito-Lay trucks all the time. But I usually didn't care, we would just shoot. The biggest danger with clearances is when they interfere with documenting real life. Something spontaneous like a cell phone ringing is different than a planned event. If filmmakers have to worry about these things, documentaries will cease to be documentaries! What happens when the girls go shopping and there's music playing in the stores? We were lucky because in our movie the music wasn't identifiable, but otherwise what are we supposed to do: walk up to the store manager and say, “Excuse me but can you turn off your radio?”

Stay Free!: What about that scene where the teachers start dancing after their meeting? And the one were the kids went up on the rock and danced. Those seemed like they might have been staged.

Sewell: No, we didn't tell anyone what to do. The kids went up there on their own. And after the meeting, somebody put on a disco song and the teachers broke out in dance. We thought it was funny.

Stay Free!: Were there any scenes you had to cut out of the film because of copyright?

Sewell: When we were down shooting the boys playing foosball, Ronnie yelled out, “Everybody dance now!” Just when I think we've finished the film, someone points out that we have to clear that because it's a “visual vocal cue.” So I went back to the publishers, and the first publisher, Spirit, says they'll throw it in with the other things we've cleared if Warner Chappell throws it in. But Warner Chappell said, “Look, we've cut you some nice deals, we can't give this to you.” They said this three-second bit would cost $5,000. And since they had Most Favored Nation status it would have raised the cost on similar uses, like the Rocky ring-tone. So I went back to lawyer and said we should keep it in because this should be a poster child for fair use. But he didn't recommend taking on the music industry. Those corporations have too much money for us to play Norma Rae our first time out.

Stay Free!: You guys should have done it and then gone to the EFF if Warner Chappell threatened you. For a clear fair use like this, lawyers are often willing to work pro bono. And the negative publicity would have scared Warner Chappell off.

Sewell: Yeah, I know, but more than anything else, it's the fear factor. That's what's discouraging.