The weird legal reason many of your favorite shows aren’t on DVD

It might have taken ages and "toward a million" spent in music licensing fees, but Shout! Factory has finally released WKRP in Cincinnati on DVD in a form that fans will recognize.
Sony Pictures Television

In late 2014, both The Wonder Years and WKRP in Cincinnati finally came out on complete series DVD sets. The latter had seen its first season come out in a hideously butchered version in 2007, while the former had never been on DVD. And to a lot of TV fans, the release of both was both cause for celebration — and a bit of a miracle.

Wonder Years and WKRP are among the best TV comedies ever made, but it was long believed to be impossible for either to come out on DVD intact. The reason is simple: both shows made ample use of pop music, occasionally just playing in the background of scenes and often to underscore hugely important moments.

As the physical media era comes to a close, the number of companies willing to pay the hefty fees necessary to close out music licensing deals has pretty much dwindled to two — StarVista, which released Wonder Years, and Shout! Factory, which released WKRP. Not coincidentally, both companies have longstanding relationships with record companies that make closing deals for individual songs easier to accomplish.

But music licensing is also vitally important to the new streaming era — as anyone who watched The Wonder Years during its brief sojourn on Netflix and heard the terrible, non-Joe Cocker version of the show's famous theme song can attest. It's by far the biggest problem in getting old TV shows (and some old movies) into the hands of the public, and it all stems from US copyright law that were largely designed for a world where TV episodes would only be consumed a handful of times, copyright law that allows greedy rights holders to have an outsize impact on these sorts of negotiations.

Indeed, if you're a fan of classic TV, then music licensing is one of the most important things you can understand, if you want to know why so many great shows seem to be disappearing down the cultural memory hole.

What is music licensing?

Any time you hear a pop song (or other piece of pre-recorded music) in a movie or TV show, someone has paid licensing fees to get that song in their film or series. Licensing fees are paid in two separate ways. The first fee is paid to the songwriter, and it goes to the publishing company that controls the rights to those songs. The second fee is paid to use the actual recording, and it goes to a record company.

For most modern shows, these negotiations include all possible uses of the song — initial broadcast, reruns, syndication, DVDs, international, and online streaming. (This isn't always the case. NBC's Parenthood, for instance, has a different theme song on DVD than Bob Dylan's "Forever Young," which is what is used on TV.) The problems usually come from older programs, which were produced in eras when it was thought that TV shows were unlikely to ever come to home video, because there were so many episodes per season.

This means that some older TV shows used incredibly expensive music no one could get the rights to today, simply because no one thought anyone in 2014 would want to watch the show in the comfort of their own homes. WKRP's most famous episode, "Turkeys Away," for instance, uses the song "Dogs" by Pink Floyd in one of its biggest scenes. However, the song has been removed from Shout's release of the show, because it's impossible to get Pink Floyd music for a DVD release nowadays.

Why were bands more willing to release rights in the ‘70s and '80s than they are now?

For the most part, the contracts that were being signed then were for a handful of airings on broadcast, then some sort of time window in syndication. (WKRP, in fact, was heavily re-edited in the ‘90s to remove songs that the program had lost the rights to.) This was easier to deal with than the thought of someone owning the episodes on DVD and having access to the music in perpetuity.

US copyright law is Byzantine and strange, but it does usually protect artists in situations like this, and this sort of ancillary use of a song was a good way for an artist to make a little extra cash without diluting the overall value of their product — particularly if the show was as good as WKRP and Wonder Years were. Where that copyright law often causes problems is when it treats snippets or samples of works like the entirety of the work, or when it deals with older songs. Copyright, which once expired after a little over half a century, now effectively could be extended until eternity by rights holders.

Yet despite these hurdles, both StarVista and Shout cleared over 90 percent of the music in Wonder Years and WKRP, respectively. There are occasional scenes where diehard fans might miss a song, but for the most part, these are as good of DVD versions as are possible of these music-heavy shows. Just how did they do it? Read on.

The cast of The Wonder Years, a show that seemed like it might never come to DVD. (StarVista)

So how do you license music anyway?

The executives at both StarVista and Shout have been doing this so long that they have a pretty good idea of whether a project will be doable simply by looking at a list of all of the music cues involved in the show. But the nice thing about having that list is that once it's pulled together, the companies can begin chipping away at it in order of prominence, slowly filling in the gaps as they go along.

For The Wonder Years, Jeff Peisch, the Senior Vice President of Entertainment Programming and Marketing at StarVista, who spearheaded the music clearances for both The Wonder Years and last year's China Beach set, told me, the first goal was to land the Joe Cocker version of "With a Little Help from My Friends" that opens every episode. Without that, Peisch said, the show probably wasn't worth doing.

From there, Peisch and his team moved on to the publishing office of Bob Dylan, who had 10 different songs scattered throughout the series in various forms. They had anticipated a struggle to get Dylan's music on DVD, but the process went surprisingly smoothly. And that helped the company approach other artists. "If we can tell people that Bob Dylan has 10 songs in Wonder Years, and he agreed to be involved, that's impressive," he said.

But getting an immediate "yes" or "no" is often unlikely, and the clearance process can drag on for weeks or even months, until a company gets an answer. These cases sometimes require going to the artists themselves, making a case, and hoping for the best. But even that sometimes doesn't work.

Collecting music clearances, then, is a slow battle to check off more and more boxes, filling in more and more gaps.

When do problems arise?

Both StarVista (Time Life) and Shout (Rhino Records) have close ties to companies with long-standing record company relationships. That puts both companies at a significant advantage when it comes to making deals to lock down songs for inclusion on DVD.

Often, however, the problems come from dealing with the individual publishing houses, which can drive much harder bargains, because there are so many more to deal with. By and large, the actual rights to the recordings will be held by one of the four major record companies, while there are hundreds upon hundreds of individual publishing houses.

"In some cases, they're small publishers where they only control a few things," Garson Foos, the president of Shout! Factory, told me. And in those cases, the publishers will often drive harder bargains that can drive up the price of not just the songs they control, but the songs controlled by larger publishing houses as well.

Oftentimes, larger publishers will request a "favored nations" rate, which means that they receive the same price per song as a smaller publisher who negotiates a sweetheart deal, though a company like Shout can sometimes get exceptions made for artists that are notoriously tricky to lock down. (The Beatles were the band Foos immediately mentioned in this regard.)

"You plead with those people that have a couple of songs to go with the rates that the vast majority of people are willing to go with and hope they'll come along, but once in a while they just won't," said Foos.

And that's when it's time to decide whether to pay the higher rate — and potentially push the cost of the whole project up by thousands of dollars — or find another solution.

So what if a publisher won't deal? What then?

In this case, a company has a handful of options. It can try to excise the music entirely. If the problem is on the recording end, rather than the publishing end, it can try to find a cover version. It can try to find a song that has the same mood or vibe. Or it can fill with original score.

For Wonder Years, Peisch came across a Blood, Sweat, and Tears song StarVista simply couldn't clear on the recording level. However, the publishing rights were available — and it just so happened the lead singer of the band, David Clayton Thomas, had recorded his own version of the song the company could get the rights to.

"You'd have to listen really, really carefully to be able to tell the difference between the two recordings," Peisch told me.

Mostly, though, these companies have to figure out new cues that will allow for the same feel of the original scene, without calling attention to themselves in disruptive fashion. And that, in and of itself, is a bit of an art.

"It's very cue by cue, and a lot of thought goes into it," Foos told me.

What are some of the other problems with music in older shows?

The famous "Turkeys Away" episode of WKRP in Cincinnati is finally on DVD in (mostly) intact form. (Sony Pictures Television)

In the case of WKRP, especially, the music often wasn't available on a separate track from the dialogue on the program's soundtrack. (Most modern programs include the music and dialogue on separate tracks, allowing for either to be replaced with ease. WKRP was filmed on videotape, which has very little flexibility in this regard.) In situations like this, if a clearance couldn't be found, Shout had to go through and digitally remove the problematic music, scene by scene, cue by cue. It was painstaking work, even with modern technology.

"The technology has gotten better and better, so there are things that you can do, but it's very exacting work," Foos told me.

Peisch pointed to StarVista's frequent release of old variety shows, like The Carol Burnett Show or The Dean Martin Show, where performances can often be hard to clear because they're being performed live, rather than as background music. In these cases, however, the company is able to simply look for other episodes with music that will be easier to clear, as StarVista doesn't release either program in complete season or series sets but, rather, in "best of" compendiums.

Are there ways the law could be different to fix this problem?

Both Peisch and Foos are quick to say that artists who have their music used in a movie or TV show should be compensated for their work. But they're also willing to point out that the way music clearances work in Europe allows for many programs to come out on DVD there that may never come out here.

In Europe, rather than negotiating clearances on a case-by-case basis, a DVD company will divide up a certain percentage of the profits of every DVD sold among the various artists who have songs in the show. It works as something much closer to the compulsory rate publishers get for sale of recorded music, which generates an automatic royalty to the songwriter.

Foos says that though Shout occasionally interests some publishers or record labels in this idea, it has yet to really find a way to push it through. There's just too much money involved for publishers and record labels in the current system. (Indeed, he told me Shout spent "toward a million" to clear music for WKRP.)

Foos also suggested perhaps there could be different rates for songs that are simply used in the backgrounds of scenes, as opposed to songs that are used in full or as performances by the original artists. It's possible such a change could be made by expanding the definition of "fair use" under existing copyright law, though such a thing is unlikely to happen, due to (again) the amount of money potentially involved.

The Arnold Family was at the center of The Wonder Years, a show many thought would never be on DVD. (StarVista)

What are some other series being held up by music rights issues?

Every TV fan has one show or another that was released on DVD in the early days of TV on DVD sets, only to have its music cues completely changed or destroyed. The wonderful, quirky drama Northern Exposure, for instance, had one of the great TV soundtracks of all time — but you wouldn't know it to watch the DVDs, which replace much of the music with annoying but cheaper tunes.

Foos says that one show Shout has looked at releasing that has lots and lots of music (including a theme song by the Foo Fighters) is the four-season small-town dramedy Ed, which gave actors Tom Cavanagh and Julie Bowen their starts, and is currently languishing in a kind of TV purgatory, where nobody ever gets to see it. He also mentioned that Malcolm in the Middle is unlikely to be released on DVD in its entirety because of music rights issues.

Music clearances have been less of a problem for movies, because the rise of wall-to-wall pop music in movies roughly coincided with the rise of the home-video market. But there are still occasional issues. Foos cited Looking for Mr. Goodbar, for instance, a seminal 1977 film about a woman (played by Diane Keaton) dealing with the sexual revolution, as a movie that may not be on DVD yet because it features so much pop music (playing in the background of its many scenes set in singles bars). Another could be American Hot Wax, a biopic about DJ Alan Freed, which uses tons of early rock ‘n' roll recordings.

But though companies like Shout and StarVista are doing their best to close these gaps so fans of these programs can have physical copies that aren't subject to the whims of streaming rights holders (and summarily yanked on and off of Netflix), time is running out. Physical media is on the downswing.

"Fortunately, we're still doing well selling DVDs, but there's no doubt it's a decreasing market, and it may get to a point where the market potential becomes too small to make it worth it, even if the [music licensing] rates were reasonable," Foos said.

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