DVD music clearances still a complex composition

PHYSICAL: Tune-heavy thirtysomething is out, but music rights keep series like Wonder Years in studio vaults

By Susanne Ault -- Video Business, 9/20/2009

SEPT. 21 | PHYSICAL: Although tune-heavy thirtysomething and Ally McBeal are finally coming to DVD, studios remain vexed by music licensing for older series, as it continues to trip up Wonder Years and other shows in ever rolling to disc.

Studios are getting record labels/publishers to budge—but just not by much. A weakened music industry has encouraged these rights holders to soften their typical hard-line stance in negotiating fees for their songs’ use. That helped Shout Factory! wrangle the rights to songs included in the first season of thirtysomething, which streeted on DVD on Aug. 25.

Releasing older shows on DVD has always been labor intensive. Music on a current TV show sails through onto DVD because usage contracts are done by the time it launches on air. But a classic show lacks such simple, built-in terms because the DVD format didn’t exist back when it was in production.

“There has been a little bit of progress in terms of flexibility from the publishers and record companies, because they see that there are opportunities,” said Shout! Factory founding partner Garson Foos. “CD sales are down tremendously and they are looking for other areas to make it up.”

Foos believes that per song rates for thirtysomething were slightly less than its music-centric 2004 release Freaks and Geeks.

But including full songs on DVD, where the original artist can be heard belting out his/her hit, is still a battle for major studios. 20th Century Fox Home Entertainment is thought to have lucked out with Ally McBeal strictly involving mostly songwriting clearances, and not a second set of issues dealing with professional musicians. The series mainly featured its actors—not the musicians themselves—singing the lyrics.

Ally McBeal arguably has around the same amount of classic, valuable songs as Wonder Years, which is also controlled by Fox. But Wonder Years is considered more expensive to clear, because many of its included tracks feature the original artists’ voices singing their songs.

“There are two sides to songs, and it’s half as much money if the actor is singing it,” said Foos.

Drama China Beach and cult animated hit Daria, (never released and held by Warner Home Video and MTV, respectively), feature such tricky composition/performance situations. It’s likely the same story for Fox’s long-running sitcom Malcolm in the Middle, which hasn’t been granted a second season even though the first was considered a success on DVD.

Major studios could reduce their licensing expenses if they paid according to per unit sales royalties, similar to how CDs are tracked. Studios would protect themselves from serious losses in the case of the DVD failing at retail.

But studios generally lack the infrastructure to maintain this type of highly detailed payment system, adds Foos. Traditionally, studios pay straight upfront fees to music publishers and labels.

“It makes it riskier for studios to have to pay upfront … but many of the studios aren’t set up to track per unit,” said Foos. “Their focus is on other things [like movies]. We are a music company [that does put out CDs] and we are set up to do this. Studios would rather give up a chunk up front and be done.”

Sources say Wonder Years is high on Fox’s release to-do list. Wonder Years is the No. 1 show that people want to see bow on DVD, according to fan site TVShowsonDVD.com.

However, Fox is unlikely to release the series unless it secures the original broadcast music. The studio did use replacement music on its first-season 2007 release of WKRP in Cincinnati, but was met with a number of consumer complaints.

“The studio had to work with the record label, performers, their estates, composers, lyricists, etc. per song. All it takes is one person to say ‘no’ for negotiations to end,” said a studio source. “This all takes time, and we want to honor the fans of the shows by doing it right. We strive to release all our projects with the original elements included.”