Nonetheless, I still prefer to think of music executives as rapacious creeps

I've been meaning to write something about AntennaTV's successful campaign to air episodes of Johnny Carson's Tonight Show in roughly their original form (rather than the clips and highlights that have been available up until now). My interest was mainly on the terrestrial superstation aspect of the story but it also raises some interesting intellectual property issues.

From the moment it arrived as a popular medium, television started shaking up the IP world. Previously near-worthless properties like Three Stooges shorts and old Hopalong Cassidy movies were suddenly worth millions (Cassidy star William Boyd made a fortune after buying up the rights to the character for $350K in the late Thirties). Then came broadcast syndication followed by satellite stations and VHS tapes, followed by DVDs, followed by streaming . Each new development brought additional potential revenue streams for copyright holders and endless waves of work for lawyers.

This was particularly true when music was involved. Dating back at least to Your Hit Parade, the two industries have had a symbiotic relationship. The recording industry provided content for the always voracious television; television provided both money and extraordinarily effective advertising. The ability of TV to promote was so powerful that numerous major careers grew out of sitcom storylines (Ricky Nelson and the Monkees to name a couple).

Music-heavy shows run into all sorts of problems when trying to tap into new revenue streams. Miami Vice had its DVD release significantly delayed and as did WKRP (which still isn't available with its original music).

The Carson Show faced similar problems:

The deal involved nearly six months of negotiations with Hollywood’s talent guilds and the American Federation of Musicians. The talks were complicated because there’s not much precedent for residual fees for full-length reruns of a vintage variety show re-airing on a digital broadcast channel. A few weeks ago the deal almost fell apart over cost issues that seemed insurmountable, but Compton and his team kept hammering away until compromises were reached.

Tribune execs are determined to keep each episode as intact as possible — which means negotiating new agreements for the show’s many musical performances on an episode-by-episode basis, in most cases.

When the release of a show is delayed by these negotiations, the standard response is to blame the shortsighted greed of the rights holders (that's what I always assumed), but Mark Evanier, who has been navigating the copyright waters of various media since the early Seventies, recently suggested an alternate explanation.

I think you're making the mistake of presuming that the fault in these cases is always with the music owners. There are instances when the company trying to license the music goes to them, makes a real insulting offer and says, "We're not paying another cent. Take it or leave it!" If you're in the business of licensing the rights to something you control, there are cases when you just don't want to empower those who use those tactics or you just don't want to lower your price too often.

If you're routinely charging $500 for the rights to something and you start getting offers of $100 ("Take it or leave it!") and you give in to enough of those offers, eventually the folks who were paying you $500 are going to start offering $100 ("Take it or leave it!"). In fact, sometimes you've assured the guy paying $500 that that's your absolute bottom line so a bit of your honor and ethics are at stake.

Very often, it works like this: Harry the Business Affairs Guy comes to you representing a company that wants to license a piece of music or a story or something you own. You tell him the price is $1000 and that's firm. He goes to his boss and says, "If we want this, it's going to be $1000. They won't sell us the rights for a cent less." The boss okays it and the fee is paid. Later, the boss hears that someone else got the same thing from you for $300…so you've made Harry look bad to his boss. That's not nice, it's not really ethical and it may cost you money the next time you have to deal with Harry.

All that said, there certainly are rights holders who are greedy or who think that in the long run, holding firm on a high price will yield more revenue even if it sometimes means losing out on some small amounts. Also, it has been known to happen that the rights holders are warring partners who can't agree on a lower price…or any price. I just wouldn't leap to assume that when a deal can't be made, the fault is always with the seller. Sometimes, not always.