Deposed

Part 2 of the Tea Makers “Copyright is hard. Let’s go shopping!” series

(MINOR CORRECTION INCORPORATED)    By now you know that CTV bought all the rights to the Hockey Night in Canada theme song, composed by Dolores Claman, after CBC failed to come to an agreement with the holder of the rights to that song, Copyright Music & Visuals (“A Division of Absolute Productions Inc.”). From all the evidence I’ve found, it really does appear to be CBC’s fault.

While I will be filing some questions for attribution, which will surely be ignored rather than answered, today I can give you bit more in the way of factual information than you will probably have seen before.

First, CMV has its own site. Principal John Ciccone has published his own side of the story, along with his own timeline of events. Dolores Claman’s daughter Madeleine Morris has a blog, which she has used mostly to provide her own side of the story.

Copyright Music & Visuals filed suit against CBC for copyright infringement in 2004 (yes, that long ago). CMV’s statement of claim, CBC’s defence, and other documents in that proceeding are helpfully available on the Web site of CMV’s lawyer, Kevin Kemp. Most of them are in inconvenient PDF format (e.g., scanned-image PDFs), while a couple are in less-inconvenient PDF format (with live text).

Nonetheless, they’re so short and self-explanatory that you can read them yourself. Note that CBC does not ritually deny every claim – it ritually denies only most claims, claiming it “has no knowledge” of eight other allegations.

But what you probably don’t want to wade through are the transcripts from a deposition held under oath on 2006.03.15&16. (PDFs on Kemp’s site. I have the transcripts in more convenient form if you want them – for research or review, say.)

  • Kevin Kemp represented CMV.
  • Lyla Simon represented CBC. (She’s formerly of McCarthy Tétrault, but her name isn’t shown on the staff directory that’s publicly available.)
  • The “deponent” (the person answering questions) was Tony Agostini, then of CBC Sports.

Two issues

From an outsider’s perspective, there are two basic issues here:

Did CBC infringe CMV’s or Claman’s copyright?

It does seem that way. CBC used the theme song in a journalistic context, but didn’t credit the source.

You will probably have read that fair dealing in Canadian copyright law is more restrictive than fair use in U.S. copyright law, but “news reporting” is one enumerated fair-dealing purpose for which you may use copyrighted works. If you do so, you have to cite the source. (There are other requirements, chiefly that the portion you use not be substantial. That doesn’t mean it has to be short or long, and it might include the entire work.)

If you don’t cite the source, you haven’t met the test of fair dealing for news reporting. By my reading of the deposition, this is an open-and-shut case for the CBC. (CBC claims its existing licence covered such usage.)

Additionally, by failing to credit the source, CBC has apparently infringed on the moral right of the author (Claman), a serious transgression that CBC would go right to the wall to keep out of a court of law. (I haven’t talked to them about it, but I have enough knowledge to realize that CBC does not want to be the other high-profile precedent in moral-rights infringement along with Michael Snow. Any defence lawyer would go to almost any ethical limit to avoid losing such a case; they wouldn’t even want it to reach trial.)

Did CBC breach its contract with CMV?

In particular, while the theme song was licensed for play in Canada, on Canadian Armed Forces bases, and in Canadian embassies and consulates, but only for Hockey Night in Canada, it could also be played in other places and on other shows if advance agreement and payment were agreed upon. The deposition is clear that the song was used for other programs on CBC and in other countries, in both cases without prior agreement.


The deposition does not delve into issues that were reported in the press, like the use of the theme song in ringtones. (The theme song is, however, John Ciccone’s cellphone ringtone.)

This is gonna be a long one, and the print CSS on this blog is terrible, so let me know if you need a version that’s easier to print. The original transcripts were produced by Victory Verbatim Reporting Services; the excerpts below were copy-edited.

Notes from deposition transcript

Dates the licence agreements were signed

Q.    Exhibit number 1 has two tabs that contain two separate documents. The first is a television and radio music licence, which agreement was entered into as it appears to be, on the 8th of October, 1998; do you see that document?

A.    Yes. […]

Q.    Similarly, did you sign the agreement dated January 23, 2003, between Copyright Music and Visuals, etc., and Canadian Broadcasting Corporation?

A.    Yes.

Q.    You signed that on or about the 23rd of January?

A.    Yes.

Q.    And this is the document that governs the relationship between the plaintiffs and the CBC, vis-a-vis the theme from, I believe, September 2002 through August 2007?

(Ciccone later told me they entered into a one-year extension of the agreement that ended in 2007 just to tide everyone over they extended the deal through the final NHL playoff game of 2008.)

Other usages required a fee agreed upon in advance

A.    “In the event, during the term of this agreement or any renewals thereof, licensee is able to broadcast the productions over the air outside of Canada or license such broadcasters, licensor agrees to grant all of the above rights to licensee in that regard […] for an additional fee to be negotiated in good faith by the parties hereto as soon as possible, before such broadcasts are to commence….”

Q.    I think that just confirms that you acknowledged to me a moment ago, doesn’t it?

A.    It does, but it says that we have the right to do it, except that we have to negotiate

Q.    And that is just what you agreed with, as I understood my question.

Ms Simon: I think the clarification is that there does exist a right, but that there needs to be a fee negotiated for that right, in order to exercise the right.

The deponent: We have the right to broadcast outside of Canada, we just need to negotiate a fee. So it is not as if we don’t have a right to broadcast outside of Canada. We have a right, but we have to negotiate a fee.

Q. by Mr. Kemp: I understand. And my question was, just so that we are clear, and I think it is consistent with what your answer was a moment ago, the question that I had put to you was that CBC does not have a right to use the composition outside of Canada, unless it compensates my clients or the plaintiffs?

A.    I think the correct answer to the question is we have a right to use it outside of money for it. But we have a right to, based on this clause.

Q.    And if you fail to pay for it, that is not authorized pursuant to the agreement? You acknowledge that is a breach?

A.    We have an obligation to pay additional money if we broadcast outside of Canada.

Q.    And failure to do so, if the composition is broadcast outside of Canada, would be a breach of the agreement; correct?

A.    I would say if we failed to negotiate an agreement, it would be a breach. But in my view, we have tried very hard to negotiate an agreement with this kind of stuff.

Later:

A.    If I remember correctly, the document said that we were in breach of the agreement, the Statement of Claim. We can broadcast, we can provide these broadcasts for use outside of the country. What we haven’t been able to do, although there has been a lot of, you know, to-ing and fro-ing, is to agree on exactly what the compensation should be for the further use.

Q.    I think you left out a part of the clause there about your entitlement to broadcast outside of Canada; correct?

A.    Which part?

Q.    Well, that says there is supposed to be an additional fee negotiated before such broadcasts are to commence.

A.    Yes.

Q.    That is part of the agreement; right?

A.    It says that is part of the clause. It says that.

Q.    You haven’t done that, have you? CBC did not do that, did they?

A.    No, we have tried to do that. […] I am not sure if you are missing anything in the agreement, but for us to reach an agreement, there has to be a negotiation. The negotiation has to be in good faith, it has to be between two parties and then we have to be able to agree to a fee. And if we can’t agree to the fee, then we end up in the situation that we are in right now.

Q.    Well, if you can’t agree to a fee, you have no entitlement to broadcast the composition outside of Canada, do you?

A.    Well, I think we do.

Q.    Really?

A.    I think we have a right to use the agreement. We have a right, based on what is in this contract to make… well, let’s read it: “In the event, during the term of this agreement or any renewals thereof, licensee is able to broadcast the productions over the air outside of Canada or license such broadcasters, licensor agrees to grant all of the above rights to licensee in that regard, mutatis mutandis, for an additional fee to be negotiated in good faith by the parties hereto as soon as possible, before such broadcasts are to commence….”

Q.    You adopt that in its entirety, don’t you? That is the term of the agreement?

A.    I absolutely do.

Q.    Tell me, then, or point to me, please, or show me in your productions, where an additional fee was negotiated between the parties in relation to those extraterritorial broadcasts? I want you to show me where the agreement was reached.

A.    Well, I said to you we haven’t been able to reach an agreement.

Q.    So you are in breach of the agreement as it relates to extraterritorial use?

A.    We are in breach of our… we have not been able to negotiate the fees required.

Q.    You have not complied with the terms of the agreement; right?

A.    I would say that we have done our best efforts to abide by all the terms of the agreement. We have not been able to conclude this particular part of the agreement. And, to be fair, we have exchange of correspondence where we have made offers and the offers have come back to us with questions. We have tried to provide the answers to those questions and I guess we are where we are today. But in good faith, we really have tried. We have tried. I mean, what can I tell you?

Q.    You haven’t done what you were supposed to do.

Still later:

Q.    Mr. Agostini, I have a very simple question for you: You knew that in order for the composition to be used outside of Canada, you had to have a deal with the plaintiffs, right?

A.    And that is what I tried to do.

Q.    But you didn’t have one, did you?

A.    No, but I made every effort to try to get the deal.

Q.    Given that you knew, you did not have a deal with the plaintiffs, why did you not stop it?

A.    Why didn’t I not stop what?

Q.    The use of the composition outside of Canada, because you knew you didn’t have a deal with Mr. Ciccone.

A.    Because our intent, all along, was to get a deal.

Q.    But intent isn’t good enough. He was telling you that you were breaching copyright, and you never said once, “Stop using the composition outside of Canada,” did you?

A.    No, because there was no reason to stop using it outside of Canada, because we were trying to work out a deal.

The HNIC theme could be broadcast in Canada and where else?

Q.    As I understand the 1998 agreement, the use of the composition in the productions, as it is defined in the agreement, was limited to the territory of Canada; is that correct?

A.    No, not quite.

Q.    Well, I believe there is an Armed Forces exception? [Attribution in original.]

Q.    Are you referring to anything else? [Attribution in original.]

A.    I am referring to Canadian Forces Bases outside of Canada, as well as Canadian embassies and consulates.

Q.    Yes, you are referring to section (c); correct?

A.    Yes.

Q.    Aside from that, do I understand correctly, that the 1998 agreement limits the use of the composition to Canada and Canada exclusively?

A.    The intent of the agreement is for Canada.

Q.    And if the composition was used outside of Canada, it is your position, is it, that my clients were entitled to be compensated?

A.    Yes. If the composition was used outside of what is included in the grant of rights, yes, we would have to look at and determine what additional monies should be paid to Dolores. The intent was not to use it outside of Canada.

Q.    And, in fact, aside from the one exception that you have pointed out, CBC is not entitled to use it outside of Canada?

A.    Well, it wasn’t our intent to use it – […]

Q.    Do you agree with me that CBC was not entitled to broadcast the composition or to otherwise licence the composition for broadcast outside of Canada without further compensation being paid to the plaintiffs?

A.    I think that would be correct.

But where outside Canada was it used?

Q.    You have acknowledged that the composition has been broadcast in the United Kingdom; haven’t you?

A.    Yes.

Q.    You have acknowledged that the composition has been broadcast in Scandinavia; hasn’t it?

Ms Simon: I really think we should go to the document in question. If you are not able to find it…

Mr. Kemp: I can find it, but I am just trying to understand this witness’ evidence in general terms.

A.    Not to my knowledge.

(Possibly also Japan, but that is never really clarified.)

Did CBC prevent the further performance of the HNIC theme in the United Kingdom?

Q.    Mr. Agostini, the composition continues to be broadcast in the U.K. to this day, doesn’t it?

A.    No.

Q.    Well, I guess we will get to that. When did it stop?

A.    I would have to provide… I don’t remember off the top of my head. But I understand that it stopped a few years ago. […]

Q.    Now, why did it stop?

A.    It stopped because we were very concerned about not having been able to work out a deal with John, so we basically stopped using the theme as part of this broadcast.

Q.    Now, when you say “we were very concerned,” who are you referring to?

A.    Well, the CBC.

What about use on the North American Sports Network?

CBC told this U.K. broadcaster “not to use the composition.”

A.    Well, because we didn’t have a deal…. We could not negotiate a deal which allowed us to, without concern, allow them to play the theme. So we said for all of the hardship that it is worth, it isn’t worth it. So let’s try to deal with the past and going forward, we are not going to do that anymore.

Q.    And without a deal with the plaintiffs, there is a copyright infringement?

A.    No, because we have, as I said to you earlier, we had provided an offer. The offer was not accepted. I guess that is where we got to where we are right now, that there has been a lot of to-ing and fro-ing with the hope that this would get resolved and I guess we are where we are right now.

How about the United States?

On NHL Center Ice, a digital specialty channel:

Q.    What did the agreement with CBC and NHL Center Ice entitle NHL Center Ice to use?

A.    It entitled Centre Ice to provide, as part of the Centre Ice package, Hockey Night in Canada telecasts.

Q.    And by its very nature, that would include the composition?

A.    That is right. And I pointed that out in my note to John, when I wrote to him in July of 2003. […]

Q.    And NHL Center Ice began to use the Hockey Night in Canada broadcast with the composition in 1999?

A.    Yes. I don’t know how many, though. I mean, as I say, modestly.

Q.    Modestly or immodestly, it doesn’t really matter in the grand scheme of things. They began to use it in 1999.

A.    The 1999 season.

Q.    Which would be 1999, right?

Ms Simon: No, it goes into 2000.

The deponent: No, it depends when it began in the 1999/2000 season.

Q. by Mr. Kemp: So at the very latest, they were using it in the year 2000?

A.    Somewhere in the year 2000, yes. In that season, yes.

Q.    Where is your agreement with the plaintiffs in 1999 or 2000 that entitles anybody to use the composition outside of Canada; where is that agreement, because I haven’t been able to find it.

Was an agreement reached concerning this usage on NHL Center Ice?

Q.    Where is your negotiation with the plaintiffs before the broadcasts were commenced in the 1999/2000 season? Where?

A.    We don’t have that.

Q.    And as a result, you did not comply with the terms of the agreement; correct?

A.    We did not conclude our negotiations with regards to the additional fees to…

Q.    Conclude them? You hadn’t even started them.

A.    Yes. I am telling you, we did not conclude the negotiations.

Q.    You hadn’t even initiated any negotiations, did you? In 1999/2000?

A.    No, in 1999, we didn’t.

Q.    Does NHL Center Ice continue to use the Hockey Night in Canada broadcasts?

A.    To the best of my knowledge yes.

Q.    And at any point in time, has any representative of CBC said to representatives of NHL Center Ice, “Hey, don’t use the composition”?

A.    I think that the NHL is well aware of our concerns with regards to not having been able to finalize the negotiations with John with regards to this issue.

Q.    Am I to infer from that statement that NHL Center Ice continues to use Hockey Night in Canada broadcasts with the composition?

A.    NHL Center Ice continues to take Hockey Night in Canada broadcasts with us right now, yes. I think you asked me the question earlier.

Q.    And by extension, that means they continue to use the composition?

A.    They take the Hockey Night in Canada feed in its entirety.

Q.    And that includes the composition?

A.    That includes the composition. […]

Q.    Did you tell them to stop as a result of those issues?

A.    I don’t think we told them to stop. We just said that we had very large concerns about trying to redress this matter. And, again, Centre Ice is a very large compilation of hockey games. This is a small component of what Centre Ice does. So for us to stay stop using this to Centre Ice… our hope was that we were going to resolve the matter, which is what we tried to do. And our focus was on trying to resolve the matter. And that is why I sent a note and that is why I put an offer in, to attempt to resolve the matter, as we are required to do in our contract.

Q.    You are also supposed to negotiate the additional fee before such broadcasts are to commence; right?

A.    Yes, but you have to have a negotiation at some point in time and acknowledge that, okay, there is something we have to do with regards to the past and let us do something now for the future, which was the intent of my note. Because it didn’t refer to just the past, it referred to ongoing seasons.

Q.    I gather, in answer to that question, then, the answer is no, nobody from CBC has ever said to NHL Center Ice, “Do not use the composition, that is bad, that is copyright infringement”?

A.    I wouldn’t characterize it that way.

Q.    I guess not. That is why we are here. You said, and let me rephrase the question, nobody from CBC has said, “Hey, NHL Center Ice, don’t use the composition”?

A.    No, I said, and I am going to repeat again, we said to NHL, “This is a problem that John has raised, we want to resolve it. And we need your help to resolve it.”

Heritage Classic

What about a single hockey game, the Heritage Classic (circa 2003)? It was broadcast on NHL Center Ice, allegedly with the use of the HNIC theme.

Q.    So, did CBC enter into any sort of separate agreement with NHL Center Ice related to the Heritage Classic?

A.    Not to my knowledge.

Q.    And are you aware whether the Heritage Classic has been broadcast in the United States?

A.    To my knowledge, in the same way, as part of Centre Ice.

Q.    So, the composition has been broadcast in the United States, as far as you know, pursuant to, or as part of the Heritage Classic?

A.    In the same way as Centre Ice, as part of the Centre Ice package.

Q.    Is that a yes?

A.    I am answering the question. I am saying as part of Centre Ice.

Q.    Has this composition been broadcast outside of Canada as part of the Heritage Classic?

A.    No. The Heritage Classic was broadcast as part of NHL Center Ice.

Q.    And that includes the composition?

A.    Well, that includes… the Heritage Classic was a Hockey Night in Canada production, which was made available to NHL Center Ice in the same way that… what we have been talking about since yesterday, that other Hockey Night in Canada broadcasts were made available to NHL Center Ice.

Q.    And did you say to NHL Center Ice, “Hey, guys! The Heritage Classic includes the composition and we have no right or entitlement to have the composition broadcast outside of Canada.” Did you say that?

A.    The Heritage game was made up… was produced by Hockey Night in Canada, was made available to NHL Center Ice in the same way as other Hockey Night in Canada broadcasts were made available to NHL Center Ice.

Q.    That wasn’t my question. My question was: Did you say to NHL Center Ice, “By the way, guys, you are not allowed to broadcast the composition as part of the Heritage Classic outside of Canada.” Did you say that? Did anybody at CBC say that?

A.    I don’t know if I can answer that, because I… why would anyone at CBC say that?

Q.    Because it would be a breach of copyright if it was broadcast out of Canada. That is why CBC would do it.

A.    I am going to answer the question in the same way I just answered it, which was, the Heritage game was produced by Hockey Night in Canada. It was made available to NHL Center Ice in the same way that other Hockey Night in Canada broadcasts were made available to NHL Center Ice.

Q.    So, the answer is, no. You never told NHL Center Ice…

A.    We did not have… I certainly did not have any discussion with anyone at NHL Center Ice on the specifics of the Heritage game because, as far I was concerned, there is no difference with the Heritage game or any other Hockey Night in Canada broadcasts.

Q.    That is part of the problem. You didn’t care if the composition was broadcast outside of Canada, did you?

A.    Those are your words, not mine.

Q.    Okay. Let me ask you: Did you care?

A.    Of course I did.

Q.    Well then, why didn’t you take steps to tell them not to broadcast it?

A.    And I did. I wrote to John and I told him, as I said to you yesterday, what we were trying to do with regards to providing him with additional money for the provision of the Hockey Night in Canada further use of the music. And we did that.

Q.    And even though you didn’t have a deal, you said, “Oh, don’t worry. You can broadcast it outside of Canada.”

A.    No, I am sorry. As I said to you yesterday, there is a provision in the agreement which allows us to license these games outside of Canada, what we were…

Q.    Only if you have a deal.

A.    Yes. And what we tried to do is to try to get the deal done.

Q.    And you didn’t have a deal.

A.    You know that. I told you that yesterday.

Q.    You didn’t have a deal.

A.    No, we don’t. And we still don’t have a deal.

Q.    Yes. And so, you are not allowed to sell it outside of Canada without a deal.

A.    Yes.

Q.    And you continued to do it, and you did it in the Heritage Classic, right?

A.    The Heritage Classic is exactly the same as the others.

Q.    Okay. And you haven’t told anybody at NHL Center Ice, “We don’t have a deal with the plaintiffs or Mr. Ciccone, so you are not allowed to broadcast the composition in the Heritage Classic.”

A.    No, as I… I have… you know, the correspondence we have had with the NHL, and as counsel said this morning, we have had discussions with the NHL on this matter…. It is not that we did not try…

Was the composition used on other CBC shows?

Yes, apparently – on Royal Canadian Air Farce on 2002.10.11.

A.    And it wasn’t cleared?

Q.    That is my position.

A.    We can check that. We can check that, because, as you know, or John knows very well, if it was used by Royal Canadian Air Farce, they would normally clear it, or they deal with the issue of having to clear music.

(Kemp also claims the composition was used on “a Rick Mercer special” in 2001. Agostini didn’t kow anything about that.)

What about the theme’s use on Hockey Day in Canada specials? Agostini claims those are merely compilations of Hockey Night in Canada games.

Q.    …has CBC taken steps to register a trademark of the words, “Hockey Day in Canada”?

A.    Yes.

Q.    When did it do that?

A.    I don’t remember.

Q.    And CBC has determined that that is something that should be identified as separate and distinct from the trademark “Hockey Night in Canada”?

A.    No, in addition to “Hockey Night in Canada.”

The HNIC theme was apparently used on curling broadcasts:

Q.    Now, are you aware of the Hockey Night in Canada theme having been used as an intro to any of the curling broadcasts in 2003?

A.    No. If anything, if it was a sports broadcast which was promoting Hockey Night in Canada coming up tonight, or someone from Hockey Night in Canada appearing on the curling broadcast, that is possible. But it is part of the promotion of Hockey Night in Canada. But to my knowledge, there was no… we would not be using the Hockey Night in Canada theme as part of a theme for curling broadcasts. Curling has its own music.

Q.    So to your knowledge, it was never used for that purpose, for the intro to a curling…

A.    Listen, I don’t know for sure that something… but it would have been themed to Hockey Night in Canada. There is no reason for us to use the Hockey Night in Canada theme as part of the theme to a curling broadcast.

Later:

Q.    [I]t is alleged in the Statement of Claim that the Hockey Night in Canada theme was used in the course of those curling broadcasts, and it was not used in a manner that was promoting the Hockey Night in Canada television broadcast. […W]e also have reason to believe that the composition was used in this manner by virtue of reports of SOCAN reflecting a broadcast related to curling broadcasts, specifically, on a variety of dates.

HNIC theme playing in a retailed home video

Q.    I have shown you an excerpt from the DVD which ran for approximately 30 seconds. Do you believe, after having seen that, that it is an accurate replication of what is actually on the VHS that was delivered by your counsel?

A.    Yes.

Q.    Is that the Hockey Night in Canada theme that is playing in the background of that excerpt?

A.    Yes.

Q.    Can you describe for me a bit about what The Circus Is in Town is about and when it was produced?

A.    The Circus Is in Town is a documentary about Hockey Night in Canada. And it was to celebrate… I think it was part of the 50th anniversary of CBC Television, and we did a documentary produced by CBC Sports, on Hockey Night in Canada.

Q.    When was the documentary made?

A.    I am going from memory, so I am not going to say, but it was towards the end of the season, which would have been either the 2002 season or the 2003 season.

Q.    Toward the end of the ’02/’03 season?

A.    Yes, it is either that season or the following season.

Q.    Could you please refer me to where in the television and radio music licence, the right or entitlement to use the composition is granted to you for this purpose?

A.    This piece was about Hockey Night in Canada, it was a journalistic piece on Hockey Night in Canada. As part of fair dealings, we are allowed to us it as part of Hockey Night in Canada. […]

Ms Simon: We are of the view that it falls under the synchronization licence, paragraph 5, subsection (l)… If the witness’ evidence is correct as to the timing, then it looks like it does predate the synchronization licence….

Later:

A.    But I believe, as I said earlier, that our use of the theme, under fair dealings, for the production of The Circus Is in Town, which was a documentary about Hockey Night in Canada, was absolutely appropriate and legal. And again, it was done for CBC, within the sports department, about Hockey Night in Canada, it was a story about Hockey Night in Canada. My understanding was there is no requirement for it to be written in any contract. And, to make it even clearer, we put it in the second contract, just to make sure that if this ever came up again, that we would have dealt with it. But we didn’t need to have it in the contract.

But was the source of the copyrighted work (the HNIC theme) stated?

Ms Simon: Is the question to the witness: Was Dolores Claman identified as the author of the work within the body of The Circus Is in Town?

Mr. Kemp: Yes.

Ms Simon: Do you know the answer for sure?

The deponent: The answer is when it aired, the credit, and I think that is the point, the credit was not put in the end credits, that is what you are saying.

Ms Simon: Is that your question?

Q. by Mr. Kemp: It is my understanding that Dolores Claman was not anywhere in The Circus Is in Town identified as the author of the work; is that your understanding, as well?

A.    Well… […]

Mr. Kemp: It is my information that it is not, at any point… Dolores Claman is not at any point in the broadcast identified as the author of the work or the composition.

Ms Simon: If you don’t know for sure, we will view it again. I have viewed it, but we will view it again and we will give you our undertaking to answer yes or no. Unless you feel confident that you can give an answer right here and right now.

The deponent: I will answer the question in this manner, and I have to say I do not recall if Dolores’ name was used in the piece.

Later:

Q.    Are you telling me it is your belief that there can be fair dealing in circumstances where the author of the work is not mentioned?

A.    I think the record shows, clearly in the correspondence, that our producer wrote a note to John saying we were sorry that the credit was not provided and it will be corrected in the next version.

Q.    Does that mean that there was an acknowledged breach of copyright?

A.    It means that under fair dealing, if we… it is not, in my opinion, a breach of the copyright in terms of our agreement, but in terms of fair dealing, we should have mentioned the name.

Q.    So is it your belief and understanding that in order for there to be fair dealing, there has to be mention of the author of the work?

A.    That is my understanding.

Q.    And there was no mention of the author of the work or the composition in The Circus Is in Town, was there?

Later still, after some research, Ms Simon stated:

I have information that it was aired September 26, 2002. It subsequently was played on November 9, 2002. During the second airing, the song was removed from the airing of the program. No, I apologize. The credits were included for Dolores Claman within the second play.

This statement doesn’t make any sense. (Which exact claim did she get wrong and apologize for?) She immediately continued:

And as far as it fitting into the contract, it does fit into the synchronization license. On further review of the license, we realized that it had been dated to September 1, 2002, therefore, that would govern the airing of the show on September 26, 2002. So, that should cover off the undertaking that was given in that regard.”

While CBC admits it did not credit the source in the first airing, thereby failing to comply with the requirements of fair dealing, CBC also insists that its existing synchronization licence authorized the use of the composition in both airings.

ExpressVu

There was a deal with ExpressVu to promote Hockey Night in Canada and ExpressVu. The exact balance of which of those two entities was “promoted” is a matter of dispute.

Mr. Kemp: We say it is a breach of copyright. It is selling Bell ExpressVu’s services, and we are entitled to know the frequency with which that promotional item aired. And I am going to be asking you for ratings of every single game when it aired.

The deponent: Well, listen, we would… if we… we would love to share that with you because it was an experiment that was, again, promoting Hockey Night in Canada for the viewer in a different way.

Q. by Mr. Kemp: And it happened to also be benefitting Bell ExpressVu, didn’t it?

A.    Well, as I said before, it was an experiment.

Q.    Did you understand it to be part of a promotion that would be designed to sell services of Bell ExpressVu?

A.    Really, no.

Q.    No?

A.    No. It was…

Q.    Then why did you need Bell ExpressVu?

A.    Because it was distributing the program in a different way, and what we were trying to do is to experiment with providing Hockey Night in Canada to the hockey fan in a different way.

37 comments:

  1. John Ciccone
    Posted September 16, 2008 at 6:06 am | # | Reply to this masterpiece

    Correction: in a post above I’d mentioned trying to resolve for 1.5 years before turning to courts for help. In fact it was 2.5 years

    – Feb-19-2002: first inquiry to CBC;

    – Nov-18-2004: claim filed.

  2. Fake Ouimet
    Posted August 19, 2008 at 2:06 pm | # | Reply to this masterpiece

    The mention in the doctor’s-office magazine is hardly make-or-break.

    Your opinion about my writing skills is acknowledged. I’ve been doing it longer than Alphonse Ouimet has.

    I don’t know how many ways I have to state the obvious: This may still be the Tea Makers, but with a new writer it’s going to be different. Something else I’ll acknowledge is that the Tea Makers you get is not the Tea Makers you want. But something you must acknowledge is that you were never promised the Tea Makers you want.

  3. Anonymous
    Posted August 19, 2008 at 11:42 am | # | Reply to this masterpiece

    Let me put my vote in for “pales in comparison” right now. Don’t get ahead of yourself here. Just because you were mentioned in Mcleans doesn’t mean much of anything. If memory serves, Ouimet was mentioned in mcleans and then some. She was also more influential than she realized and inspired many Canadian bloggers, myself included. No offence, but she is a better writer. You would be smart to read her closely.

  4. Fake Ouimet
    Posted August 18, 2008 at 9:13 pm | # | Reply to this masterpiece

    I’m not leading anything, and all your other comments, J. Happypants, that somehow managed not to be personally destructive are and will remain online.

    I write this blog now whether you like it or not and whether it towers over or pales in comparison to the original Tea Makers. Two different writers will produce two different blogs. QED.

    At some point you’re going to have to address Ciccone’s statements about his offer of a continuation of the existing deal, and CBC’s de facto admission of copyright infringement. It does not seem to me like Scott Moore, Nancy Lee, and CBC in general at any time since 2007 ever actually wanted “a deal” for the Hockey Night in Canada anthem. If Ciccone is correct, they were plotting a contest to replace the anthem as far back as that year.

    Of course, all of that could be false. If you have evidence that does not involve mortal insults against Dolores Claman or anyone else, the floor is yours.

  5. Johnny Happypants
    Posted August 18, 2008 at 5:59 pm | # | Reply to this masterpiece

    I gave details and engaged in debate and my comments were deleted. This is a dead issue for us. The CBC didn’t blow a deal. They tried for a deal that would help production and couldn’t get it. We’ve moved on.

    This blog used to be great because it was run by someone who knew the CBC (all platforms), its history, and its current culture. That person also had a great sense of humour and knew how to create interesting posts and let a discussion grow without senseless interjection. JC, you are not qualified to lead. You should pack it in.

  6. Anonymous
    Posted August 18, 2008 at 1:22 pm | # | Reply to this masterpiece

    re: a previous comment… Is Newsworld really “self-financing”? But don’t they get most of their content from the news wing of CBC proper? Or do they actually pony up part of the cash for every story they run, in one of those paper-juggling magic accounting moves?

  7. Fake Ouimet
    Posted August 18, 2008 at 5:59 am | # | Reply to this masterpiece

    J. Happypants and lawyers and everyone else may comment here, so-called Real Ouimet.

  8. Real Ouimet
    Posted August 18, 2008 at 5:14 am | # | Reply to this masterpiece

    I never thought I’d see the day that the great Johnny Happypants would be chastised and silenced on this blog, and the discussion left to the lawyers.

    Can’t they get their own blog?

  9. Fake Ouimet
    Posted August 17, 2008 at 9:25 pm | # | Reply to this masterpiece

    Comments do not have to be defamatory (slander applies only to unwritten language) or false to be deleted. I merely have to deem them to be personal attacks against somebody.

    Now! J. Happypants, give us some more details about your attempted usage of the HNIC theme, keeping in mind that, until the CCH decision by the Supremes, there was nothing resembling a parody exemption in Canadian copyright law and the licence for the theme at the time was almost exclusively restricted to Hockey Night in Canada. Nonetheless, tell us more.

    Then John Ciccone can tell us his side.

  10. John Ciccone
    Posted August 17, 2008 at 9:18 pm | # | Reply to this masterpiece

    Hey there, Johnny Happypants. I think folks might like to know what you mean by “tried and failed” and “problems”. Could very well be relevant to this thread.

    (Ringo says “hello”)

  11. Johnny Happypants
    Posted August 17, 2008 at 11:09 am | # | Reply to this masterpiece

    There seems to be reading comprehension problems all over this blog, from some hot-headed comment-makers to the blog keeper Joe Clark.

    I never idenified myself as part of the negotiating team trying to hammer out a deal for the tired old tune. My comment was based on my television production experience going back many years. I tried and failed to use a few bars of that music in many shows involving parody, tribute, or promotion. Even News and Current Affairs had problems. That’s what I was writing about.

    My comments were not slanderous or false and should not have been deleted.

  12. Fake Ouimet
    Posted August 16, 2008 at 9:47 pm | # | Reply to this masterpiece

    If you are arguing that CBC is a “state” broadcaster because it is a tool of the bureaucracy, then I must demand, sirrah, that you apologize for your indefensible libel of true and verifiable state broadasters in, for example, North Korea and China. I knew state broadcasters and you, CBC, are no state broadcaster.

    By the way, you know Newsworld is self-financing and that Stursberg is trying to raid Newsworld’s kitty, right?

    I believe John Ciccone will confirm that the CBC could have swung a deal similar to CTV’s, in which sales of the HNIC anthem as ringtones and the like could have brought in ongoing income.

  13. Anonymous
    Posted August 16, 2008 at 5:06 pm | # | Reply to this masterpiece

    fake quimet 8:45 AM

    “if CBC got “all” its funding from “the state”… it wouldn’t need to run commercials”

    Yeah yeah, I know, the CBC isn’t properly subsidized.
    $1.1 billion+ doesn’t even begin to pay for your senior executives first class travel and five star hotels. Which is why the CBC’s programming is paid for with tax dollars from the CTF and telefilm. And to make sure that advertisers recognize the value of running commercials on the CBC why not offer the HNIC theme song as a ring tone and as an inducement to advertise. No, wait, that’s a bad idea.

    I certainly agree however that the CBC does not influence popular opinion – how could it with such historically low ratings? Nobody’s watching.

    “CBC cannot be a haven of leftist propaganda and also a tool of the state”. Quite right fake quimet because it’s not the government which runs the CBC (which operates at arms length from parliament) it is unelected bureaucrats who control the cultural industries and their agenda is to defeat conservative opinion – which may not be a good idea if Harper wins a majority in the fall because the slash and burn of cultural freebies may be the beginning of the new crusade and just you might be playing for the wrong team.

    As for my “tiresome” comments I must apologize.
    I’ll try to do better.

  14. Fake Ouimet
    Posted August 16, 2008 at 6:45 am | # | Reply to this masterpiece

    If CBC (or, in your orthography, QBC) got “all” its funding from “the state,” it wouldn’t need to run commercials. You might want to check that.

    CBC does not “influence public opinion” any more than Fashion Television: The Channel does.

    If CBC were truly a “state” broadcaster, you’d be tickled pink, since you support everything the state does, do you not? Critics of the QBC cannot have it both ways: CBC cannot be a haven of leftist propaganda and also a tool of the state.

    And, for your information, what I changed my mind about was whether of not another Anonymous’s (Qnonymous’s) comments violated my rules. I decided they did, so I nuked them. Note that your comments, while tiresome, do not violate the rules and are here for all to see. You do, however, have some catching up to do.

  15. Anonymous
    Posted August 15, 2008 at 7:25 pm | # | Reply to this masterpiece

    fake quimet 11:23 AM

    “CBC is a public broadcaster, not a state broadcaster”

    When unelected bureaucrats attempt to shape public opinion through the use of media which is financed exclusively with public funds then you’re dealing with a totalitarian mentality – and there’s nothing “public” or democratic about that. And if one does not agree with the bias of this same broadcaster, well, they obviously have “reading comprehension” issues?

    “I have no confusion whatsoever over the rules. I merely changed my mind…” Now that should be on a t-shirt. Absolutely brilliant. But the best is comparing yourself to the President of the CBC who may change his mind from time to time. “Should I reschedule the news and replace it with an American simulcast”???

  16. Fake Ouimet
    Posted August 15, 2008 at 9:23 am | # | Reply to this masterpiece

    CBC is a public broadcaster, not a state broadcaster (Cf. CCTV), a distinction “the political right” can never quite make.

    It was and still is your responsibility to hunt down the commenting rules. This does in fact require reading comprehension.

    It was, is, and will remain my role to enforce them as I see fit. I have no confusion whatsoever over the rules. I merely changed my mind in one case. This will happen. I assume even the president of the CBC will change his mind from time to time.

  17. Anonymous
    Posted August 15, 2008 at 8:26 am | # | Reply to this masterpiece

    joe clark 11:18 PM

    “I sprung into action almost as soon as I read the offending comments. I decided to keep them. Then I changed my mind…”

    You start your posting with an ad hominem attack against me, suggesting that I have difficulty with reading comprehension. Good tactic – that’s what the political left are best at.

    Then you argue that the CBC is not a state broadcaster. Really? If $1.5 billion in subsidies from the taxpayer every single year doesn’t qualify CBC as a “state broadcaster” then what does?

    Then you acknowledge your rules are arbitrary, simple and that you won’t restate them. Where are they posted? Is “arbitrary” a misnomer for biased?

    And then your logic becomes kind of fuzzy when you speak of “springing into action” by posting the comments and then “changing your mind”. So apparently you are not completely familiar with your own simple and arbitrary rules.

    But “there are rules” and “you have taken over” and you “will enforce the rules” even though you yourself are confused by the rules.

    Good for you Joe and good luck with your blogging empire. Fake Quimet is such a … felicitous nom de plume.

  18. Joe Clark
    Posted August 14, 2008 at 9:18 pm | # | Reply to this masterpiece

    First of all, since you have some trouble with reading comprehension, I do not work for the CBC. The CBC is not a state broadcaster and the Tea Makers is not an organ of the CBC.

    Second, of course the rules are arbitrary and of course I made them and of course I enforce them. But the rules are very simple. I won’t restate them.

    Actually, I sprung into action almost as soon as I read the offending comments. I decided to keep them. Then I changed my mind sometime later and deleted them.

    This is, you see, my right, and there are no avenues of appeal. At all.

    There are rules, I have taken over, and I will enforce the rules.

    Nonetheless, I like the name Fake Quimet. Makes me sound like a quisling. Which I’m not.

  19. Anonymous
    Posted August 14, 2008 at 8:18 pm | # | Reply to this masterpiece

    fake quimet 4:16 PM

    “personally attack someone and your comment gets deleted”

    Really? And when “johnny” made slanderous and blatantly false comments about the composer to the HNIC theme song (now owned by your broadcast rival) being difficult – lying, as if he was involved in direct negotiations with Dolores Claman – and further hateful, malicious statements about her age, that’s when you should have pressed the delete button but you posted “johnny’s” comments and did not moderate them as you are required to do. It was only when I responded and referenced “johnny’s” obvious mental illness that you took action and had I not posted a suitable response then the blatant lies and defamatory comments directed towards Dolores Claman would still be posted.

    We all recognize that there are some personality issues within the CBC workplace and that you’re all stressed out from being abused and threatened because I did see the “wellness survey” stories recently, but to direct such animosity and frustration towards the composer of the HNIC song which your senior managers lost the rights to in a bungled negotiation is childlike and unprofessional.

    If you are going to create arbitrary rules now that “you’ve taken over” then don’t you think the right thing to do is to enforce them without bias?

  20. Fake Ouimet
    Posted August 14, 2008 at 2:16 pm | # | Reply to this masterpiece

    No, actually, Anonymous, personally attack someone and your comment gets deleted. Those have been the rules since I took over. Quit acting surprised.

    Also! I don’t work for the CBC. The Tea Makers under Fake Ouimet is in no way “at the CBC.”

  21. Anonymous
    Posted August 14, 2008 at 12:25 pm | # | Reply to this masterpiece

    re: this post has been removed by a blog administrator

    censorship at the CBC – what a surprise!

    mention the “wellness survey” or use the words “mentally ill” and your posting is deleted

    welcome to Red China

  22. Anonymous
    Posted August 13, 2008 at 1:41 pm | # | Reply to this masterpiece

    I would get a grip except that you’ve laid them all off

  23. holyoke
    Posted August 13, 2008 at 1:06 pm | # | Reply to this masterpiece

    Oh, anon 1:02, puhleeeeze….

    Many (most?) of us who read this blog actually work at the CBC, so we know how wrong you are re: literacy, intelligence, etc. Your post is like showing up at a dinner party and pissing in the punch bowl.

    And, I don’t know if you’ve noticed, but some (most?) of the most scathing criticism of the corporation posted here is posted by employees.

    So, please do get a grip.

  24. Anonymous
    Posted August 13, 2008 at 11:02 am | # | Reply to this masterpiece

    Reading the posted comments from those who think they are defending the interests and integrity of the CBC pursuant to the HNIC theme song issue validates my long held suspicions that those who work for the CBC are hateful, semi-literate and well below average in intelligence. Johnny Happypants might be one of the “geniuses” who blew the deal. Good work Johnny.

  25. John Ciccone
    Posted August 13, 2008 at 7:54 am | # | Reply to this masterpiece

    That’s no trouble, Anonymous 10:52. Appreciate your reading.

    “I think you are also shrewdly continuing to deliver one side of the story, that’s your job – and you are clearly kicking CBC’s ass in the PR department. (Someone from CBC Sports, or anywhere upstairs, really should come here, anonymous or not, and spill some. Don’t keep it bottled up… You know you want to.)”

    That’s a very good idea. I too would like to see someone here. Preferably not anonymously. But I’ve always encouraged people to get both sides of the story, and decide for themselves and having a response to my comments is the only way that can happen.

    As it is, I can only be reactive. IMO, had the CBC effectively held themselves accountable and not try so hard to spin and cast blame elsewhere, you never would’ve heard from me. In my 25+ years, and literally thousands and thousands of deals, the total number of times I’ve had to ‘go public’ and list events chronologically with direct quotes has been — zero.

    But what came out of the CBC announcements were IMO shockers. Examples were statements that:

    http://www.cbc.ca/arts/story/2008/06/06/coderre-verner-themesong.html “We have no real idea why the deal fell apart,” he said. “We’re not sure why because the other side hasn’t communicated with us. You have to ask the other side what happened.” while I’m staring at half a dozen back-and-forth emails from that day; or

    – suggesting in print, net and broadcast that the only option available was to buy the song for millions which they couldn’t afford. This too spurred anger that poor ol’ CBC was being held for ransom. Unfortunately, CBC didn’t mention how they themselves killed the purchase idea several months earlier… and omitted how the CBC could have *made* money by purchasing the song, and how every major and indie publisher interested in buying the song over the past year found the price reasonable and based on industry standards. But maybe it was easier to say what they did than admit that they passed on the $500/game status quo license, and a reasonable settlement offer.

    In any event, of course I’m going to respond to this stuff. If it’s not clarified, someone could get the ridiculous impression that Dolores is a nutbar or something. Naw… in the first place, Dolores doesn’t deal with anyone but me nor with the day-to-day business and negotiations. She’s also known to be quite brilliant, compassionate, endlessly charitable, and one of the greatest composers to come out of Canada (more on her Juilliard fellowship if you want it). No-one in their right mind that actually knows Dolores would have anything less than love and admiration for her.

    “If you (and Joe) are right about CTV getting the deal done, congratulations – that’s a lot of money for a few hours work selling an old song (by the by, how long before it ends up being public domain?)”

    :-) The old adage of taking 15 years to become an overnight success. A price tag on a song is determined by common industry practises: i.e. average annual earnings x 13 = your price tag. That multiple of 13 is subjective and can vary in negotiations. Joe is aware of some as low as 3, while the Leiber and Stoller catalogue (“Hound Dog”, “Jailhouse Rock”, “Coaster Songs” etc.) apparently sold last year using a multiple of 23. And I’m not sure that those, or other “old song(s)” diminish in value over time. Indeed, I can make a compelling argument that the perennials are quite valuable. Foo Fighters, Tony Bennett, whatever… no matter how big a song is, it’s usually really big… for a few months. Then it basically goes away. After 39 years, the Hockey Theme is stronger than ever. Each October, Christmas and Playoff start see a tremendous spike in interest. You will not convince me that this longevity should somehow devalue a song.

    I don’t have direct experience, but I think it’s the same way you buy any business. Whether it’s a hardware store or a fish and chips shop, you look at what it’s earning, determine how long to make your money back, and what it stands to earn in the future vs. other investment yields.

    Anyway, I do remember offering to the CBC that “if I can earn this much with you ‘fighting’ me all the way, imagine what you could do.” Don and Ron hold up a CD or cell phone in Coach’s Corner once and, well, that’s done. There also seem to be extensive marketing and other resources within the CBC to tap into. Drop a short spot somewhere similar to the promotions for the new theme contest. Could be a good thing. Offer it to all of your sponsorship partners. Charitable fundraisers for goodwill. Seems endless.

    Long way to say that taxpayers might in fact like to see CBC invest in something that can actually *make* money, and likely for a very long time.

    BTW, in answer to your question: a composition goes P.D. 50 years after the death of the last surviving composer. In Canada. EEC countries have gone to 70. The U.S. is a mess. 28 years from publication, 75 years after death, and many more formulae depending on when the song was written, published and, if applicable, Registrations and Renewals were completed on time.

    Finally, I confess I’m drawn to your use of the word “shrewdly”. To me, that carries connotations of trickery. Certainly not my intention and I’m trying hard to be as clear and specific as possible while using examples or ‘evidence’. If I’ve failed in that, it’d be a great favour to let me know how I’m doing so.

  26. Fake Ouimet
    Posted August 13, 2008 at 7:06 am | # | Reply to this masterpiece

    J. Happypants, if we grant, for a reluctant moment, the truth of your plainly defamatory claim, does it justify infringement of copyright and breach of contract?

  27. Anonymous
    Posted August 12, 2008 at 8:52 pm | # | Reply to this masterpiece

    Thank you, John. As one of the previous anonymous posters, you’ve answered some of my questions. I appreciate your coming here, and although I think you are also shrewdly continuing to deliver one side of the story, that’s your job – and you are clearly kicking CBC’s ass in the PR department.

    (Someone from CBC Sports, or anywhere upstairs, really should come here, anonymous or not, and spill some. Don’t keep it bottled up… You know you want to.)

    If you (and Joe) are right about CTV getting the deal done, congratulations – that’s a lot of money for a few hours work selling an old song (by the by, how long before it ends up being public domain?)

    If so, it’s the same thing that happened with the next Olympics – CTV simply walked in with a bigger bag of cash than CBC was willing to pony up. Everyone said CBC was stupid then, too. But hey, it’s your tax dollars. What’s a few more million?

    I guess we (or CTVglobemedia shareholders) will see if they turn a profit on the 2010 games, or TSN’s hockey games jump in ratings when they change the music. If not, I guess John and Dolores are the only winners here.

  28. John Ciccone
    Posted August 12, 2008 at 7:27 pm | # | Reply to this masterpiece

    Long Post Ahead. Hide all children and small animals:

    I'm John Ciccone of Copyright Music & Visuals, publisher/copyright administrator of the Hockey Theme for ~15 years. I realize I'm much of an outsider here but if you like, I'm still pleased to try to answer questions directly and help clarify as much as I can. Alternately, feel free to contact me directly at john@copyrightmv.com.

    Same token, tell me to hit the road and I will.

    Joe, thanks for taking the time to compile this. Whichever way things go, interested people can only benefit by having access to lucid, factual accounts like this.

    Couple of points to the above posters, if I may:

    Yeah, it's inevitably long. No-one knows that more than I do. My hope is that folks try to keep it in that perspective. We're talking about a six year history. No-one woke up one day and said "Hey. No response to yesterday's letter. Call my lawyer, we've hit the lottery."

    Instead, there was a year-and-a-half (1.5 years) where we relentlessly tried to straighten out the kinks one-on-one, behind closed doors. I suggest many wouldn’t have lasted a week. And if we truly wanted to conduct business through the media, we would’ve jumped on the Ron McLean bandwagon that day in 2002 when they surrounded the CBC building with megaphones.

    In any event, things got progressively worse until not just my correspondence was ignored or not responded to, but same treatment was extended to our gentlemen solicitor lawyers when they tried. I do not regret surmising that we'd have to turn to the courts to help us get a few answers.

    Sad part to me is that the first meeting with Sports execs on their return from Sault Lake Olympics in 2002 was still in context of our attempts to maintain an amicable relationship. CBC files have a lot of records of us bending and being accommodating.

    In fact, I’d broached it simply by saying I just don’t want my client, or me, to be accused of ‘selective enforcement’. Then it’s “You let them go, why you comin’ after me?” And the whole thing unravels. Simple, really. I offered that given the ‘big picture’ objectives, some of the uses might not be worth very much. “One dollar the receipt of which is acknowledged herein.” Let’s just enumerate them. Who knows? But six years later, I still don’t know. They still haven’t been clear on what they’ve done.

    As mentioned to Ouimet, the reaction at that lunch seemed positive. “Yeah, we should be able to get that to you.” But the decision was to go a different way. And now we’re in court.

    To this day, I can’t imagine how bad things would’ve been if someone stood up and said “Look, I don’t know what happened. But something got screwed up. How do we fix it?”. Could someone like that get slammed by anyone? “Heck, judge, we’re trying to do the right thing here.” Instead, six years have passed and the problems have accumulated. It is beyond my ability to understand how the risk assessment leading to that decision could be made in light of the fact that the composer forgave 25 years of unlicensed use just to “Develop a friendly relationship and move forward. Everybody wins.”

    As for any commission I was on, even 100% of zero is still zero. I was proud to represent that philosophy. Did someone actually look at this history and determine they'd be attacked by opportunists?

    Anonymous, though you’re right that it does happen, I can’t agree that it’s all the time. Or much of the time. My last 25 years has in fact been representing producers, helping them get the clearances they need. Indie to Hollywood filmmakers, Home & Garden network to NBC and ABC networks and all the stuff in between. The majority make strong efforts to get it done right before it’s a litigious matter, or before they’re in a weaker negotiating position, or before they create resentment among the people they’ll likely have to do business with again some day.

    I’m afraid the statement about having “no interest in setting a price afterward” is quite wrong. As complex as intellectual property licensing might be, it can also be simply broken down to “How much is a string?”. “Well, how long is the string?” Remember, to this day, I still do not know what they’ve done with the song! Subsequently, it is impossible to put a price tag on the use… presuming it’s even worth some dough. And their files show years gone by when they asked for favours to use the song because they had no money for some Prime Minister’s special event in China, etc.

    There is one email I believe Mr. Agostini alluded to where he supposedly told us what they were doing. If that’s all they have it will be clear to all to see how there was not even close to enough info to allow us to process the request or license. They were asked many times for clarification. None was received.

    You asked about Air Farce being independent. CBC said the same about Rick Mercer. I’m quite sure that at best, they’re co-productions. CBC + an outside co. like Salter Street, I think, in R. Mercer’s case. But you have to question when you see how much pre-production, production, post-production, marketing, sales, etc. is done on the CBC premises with CBC crews, personnel, facilities, etc. In fact, I recall Mercer’s people looking around for copyright clearance support when they started, and settled with a full-time CBC employee in the Business Affairs dept, in the broadcast building. Clearance is done from there; licenses are sent there for execution; payment comes from CBC Ottawa on a CBC cheque… At that point I lose track of what the CBC is trying to say. Perhaps they’ll clarify.

    “If anyone here has successfully negotiated a multimillion dollar deal with someone who's suing them for the same amount, please send your resume to CBC Sports.”

    Point taken. Also made by CBC. My response was, if you don’t like doing business with someone who’s suing you, don’t do something that gets you sued. Assume for a moment that all claims are solid with evidence and as egregious as they might appear. Should the suit be dropped because a license should be done instead? If someone told me this was leveraging continuance of the license against dropping lawsuit, I wouldn’t disbelieve it.

    “And if anyone believes that CMV and CTV magically reached a multimillion dollar deal on the day they stopped negotiating with CBC (unbeknownst to CBC, apparently) you must be high. As Joe said, copyright is hard – a deal like this doesn't get done in a few hours. It was complete bad faith and probably had be for years..”

    Oooh… now you got me going :-). Let me state here unequivocally, and anywhere under oath, on a stack of bibles, and on my Mother’s good and beautiful name, you’re dead wrong. Prior to that whirlwind week I’d had NO discussions, NO correspondence, NO telepathic or any other communication with CTV about their acquisition of the song. Clear?

    When it hit the fan, we had what later turned out to be six (I was only aware of four) people/businesses/entities, one being CTV, asking if the song would be available since the announcement was that CBC had dropped it. Each of the four that inquired were told that CBC had our proposal in front of them available for acceptance until end of business day Friday. (Even though CBC refused our proposal moving the deadline earlier to Wednesday… we still gave them til Friday when they jumbled that up in the press.) Everyone, including CTV — and especially CTV — backed right off. They all acted with unreproachable professionalism, integrity and class. That was refreshing. Besides, why would they do anything else? They couldn’t. No-one could change our proposal as it was presented a week earlier and days before it hit the papers and anyone even knew about it!

    End of Friday, CBC announced their contest. Monday morning we were working out the agreement with CTV. The papers were subsequently drawn and fully executed that morning. All hands were on deck. Yup. Two hours.

    That’s another bone of contention by now putting people to sleep. (Did I just hear the sound a lot of foreheads smacking against their keyboards?) These things *can* be done quickly. They’re often complex, but they’re not a Middle East Peace Accord. It’s just a music license.

    In the late 80’s I worked on a national commercial, for IBM, using Beatle music. Three huge elements. I did that deal in less than 20 minutes. Only thing slowing it down was four days for Fedex between Toronto and L.A.

    This is how it happens most of the time (exceptions of course). This is an industry where six-figure deals can die if it takes 3 days instead of 2. As such, no-one has time for the bullsh*t. Studying up for mediation I discovered that these ‘styles of negotiation’ have been categorized: positional negotiation, and interest-based negotiations. The former takes forever because it starts from “I’m gonna win big, and you’re gonna lose big. So let’s start with the meetings to set meetings about a series of meetings”. The latter is about no-one having to walk away a loser. Cut to the chase and let’s get out of here.

    It is possible to do a deal in 2 hours or 20 minutes. If there’s trust and simple honesty. If everyone knows their industry, their reputations and what will be expected, and what will be *reasonable*. And if no-one's hell-bent for breeding long-term resentment. Or else you end up with what anonymous points out.

    Positional crap is the bad old days. Pre-depression days. Earlier. When they used to pluck children from the classroom and stuff them down chimneys because they fit, and someone could make more chimney-cleaning money against someone else’s ‘losing’.

    “Think about it – what possible incentive would CMV have reach a deal with CBC?”

    I hesitate to say this because of how corny it might sound, but my first meeting over a year ago with the new CBC exec I said “I don’t think either one of us want to end up an asterisk and a footnote in Canadian history as the guy who screwed this up. 40 years of Canadiana when people love to have a bit of heritage while watching Hudson Bay, Canadiens, and all the steel companies sold to the U.S.”

    But you do feel a responsibility. I’ve read every letter and email and know it goes kind of deep for a lot of people. Well, we all saw how many. So why should a handful of people kill that just because they’re p*ssed off or can’t get along or are offended or whatever?

    Finally, a point I can’t make enough, seeing the stunning media releases issued by the CBC, is that in my presentation to the CBC on how and why they should purchase and own the song outright, they were shown numbers and historical data that clearly indicated how easily they could recoup their cost to purchase. The same formulae and justification that all music publishers were using when they came a courting. But no-one was asking the CBC to throw their money into a hole in the wall.

    That’s it. I better get out of here. My apologies for rambling, but I am around if anything I can offer.

    http://www.hockeytheme.com for more info (click on "Important Announcement").

  29. Anonymous
    Posted August 12, 2008 at 5:36 pm | # | Reply to this masterpiece

    johnny happypants 5:39 PM

    “Dolores was a classic nutbar and not having to deal with her is a great relief for those of us who had to”

    Really? And when did you ever deal with Dolores Claman or her representative John Ciccone? You’re an absolute liar.

    The Statement of Claim which is linked to this posting tells the real story about dealing with the CBC on this issue. The CBC failed to provide the composer of the HNIC theme any monies FOR THE FIRST 25 YEARS !!!

    The CBC breached their fiduciary duty and licensing agreement with respect to Dolores Claman’s composition in ways which are unimaginable. Blocking third party efforts to license the use of the composition, offering it to clients to use as a ring tone as an inducement to advertise with the CBC, allowing other CBC productions to use it for free, allowing it to be used by foreign broadcasters for free etc etc and then bullying, intimidating and threatening. Refusing to negotiate in good faith and failing to offer compensation for over two decades of use without compensation.

    But johnny happypants thinks that Dolores Claman, an 80 year old woman living abroad, is a nutcase? You’ve never met her and you certainly don’t have the perspicacity to understand copyright issues.

    This is precisely why the CBC’s reputation with the public and the TV industry is so negative. The arrogance of johnny happypants – paid blogger for the CBC – summarizes and epitomizes everything which is wrong with the CBC. What a jerk.

  30. Johnny Happypants
    Posted August 12, 2008 at 3:23 pm | # | Reply to this masterpiece

    Amanda,

    You don’t have to go back 10 years to find money mismanagement and wasted millions. How many years is VISION overdue and what has it really cost? Long enough for the people who brought it in to be promoted at least twice.

  31. Fake Ouimet
    Posted August 12, 2008 at 12:52 pm | # | Reply to this masterpiece

    Copyright is hard. Buying a work outright for seven figures isn’t †necessarily. That’s what happened. It boils down to a kind of remark like this (or so I speculate â€Â my mental image has a tough guy chomping a cigar): “Lemme give yez… lessay… five mil here. For all your trouble ’n’ all that. Deal?”

    I’ll let him write his own comment, but Ciccone told me he accomplished more in a couple of hours with CTV than years with CBC. For better or worse, I find this credible.

  32. Anonymous
    Posted August 12, 2008 at 10:25 am | # | Reply to this masterpiece

    Okay, I said “not suing for millions”… I guess I meant “not suing for mega-millions”. 2.5 Mil is not a huge amount compared to the payments she was entitled to in the first place.

    Also, no really, a suit isn’t necessarily an impediment to reaching an agreement, and CBC management said as much during this process (why else would they bother negotiating in the first place?) Normally you would simply settle as part of the bargaining process. It’s coming to an agreement that counts, not how many suits are outstanding.

    And never mind “sending a resume to CBC Sports”, there are people who are employees of CBC who have sued the corporation and are still working there. It’s just business.

  33. Anonymous
    Posted August 12, 2008 at 9:23 am | # | Reply to this masterpiece

    Thanks, Joe, this is very interesting – unlike others I appreciate the long post – much shorter than reading all the original documents.

    Easy enough to agree with the plaintiff, especially since they’ve published reams of documents telling their side of the story and CBC has not, as always. It’s obvious that CBC continued to use the theme in different ways without prior agreement, though I do believe they thought they’d eventually reach a fair price after the fact.

    That’s likely immaterial in a court case, but in reality broadcasters do this shit all the time – they they have a license for the music, and a show to air – just assume business affairs will pay later. And it sounds like they had a framework for payment and were willing to pay, but the plaintiff had no interest in setting a price afterward – more profitable to sue. If anyone has seen evidence of them negotiating payment in good faith I’ve yet to see it.

    (Sidebar question about the alleged Air Farce usage – in 2002, wasn’t Air Farce an independent production that negotiates its own rights separately?)

    Regardless, they didn’t have prior agreement, and they’ll lose this argument. But I think this only strengthens the decision not to use the theme going forward.

    Anon 10:05 is completely wrong – Yes, the composer was suing for millions – $2.5 million, to be exact. If anyone here has successfully negotiated a multimillion dollar deal with someone who’s suing them for the same amount, please send your resume to CBC Sports.

    And if anyone believes that CMV and CTV magically reached a multimillion dollar deal on the day they stopped negotiating with CBC (unbeknownst to CBC, apparently) you must be high. As Joe said, copyright is hard – a deal like this doesn’t get done in a few hours. It was complete bad faith and probably had be for years. Think about it – what possible incentive would CMV have reach a deal with CBC?

    By holding out and being difficult, they get millions from CTV *and* keep their multimillion dollar lawsuit. Get paid twice.

    Ah, if only CTV were subject to ATI the way CBC is. Wouldn’t it be nice to see the documentation on their end of the negotiations? Get your hands on that, and you’d have a lovely countersuit. Instead, CBC will just shut up and pay up.

  34. amanda huginkiss
    Posted August 12, 2008 at 7:51 am | # | Reply to this masterpiece

    While we’re on the topic, why is it that managers can screw up time and again and yet never be punished for it?

    I seem to remember (in 1997 or so) that a million dollars went missing from the budget as part of an accounting error that unnoticed for most of the year. And yet no one got fired.

    It all plays to the perception that people are promoted into management simply to get them out of the way of the day to day work of broadcasting that the rest of us are doing: that the incompetents rise to the top.

  35. Enik S.
    Posted August 11, 2008 at 8:31 pm | # | Reply to this masterpiece

    You know, someone outside the organization would think that a senior manager–in fact, a senior manager with many years of experience in the sports department–would have to be phenomenally stupid to come up with some of these chicken-and-egg answers to perfectly intelligent and straightforward questions such as these.

    It’s obvious that Sports was rushing to do deals left and right to get its product on the air in different markets, and assumed that the required negotiations could and would be done after the fact and that the composer should be grateful for whatever offer the CBC made as part of that ‘negotiation’.

    The notion of concluding a deal with the composer before securing a deal with the foreign broadcaster was clearly not considered and is still the subject of some kind of supernatural denial verging on the psychotic.

    (Oh, and if it adds any useful perspective–a few people inside the organization also think that such a senior manager would have to be phenomenally stupid. Unfortunately, they also know that such stupidity is not unique to this individual.)

  36. Anonymous
    Posted August 11, 2008 at 8:24 pm | # | Reply to this masterpiece

    The CBC will not win the civil action filed by Dolores Claman. The deposition posted on this site is a radically different version of events than what was promoted by Scott Moore and the CBC.

    Now that the truth is beginning to emerge as to exactly why the lawsuit was filed as a result of the CBC’s breach of its contractual obligations related to the HNIC theme song, the CBC’s questionable reputation will be further eroded and the political pressure will build to a point where there is no support for the CBC or its mandate.

    The darkest days are just ahead.

  37. Anonymous
    Posted August 11, 2008 at 8:05 am | # | Reply to this masterpiece

    Sooooo looong.

    At any rate, an outstanding suit isn’t necessarily an impediment to reaching an agreement. It’s not like she was suing for millions.

    I do wonder, as a conspiracy theory, whether CTV didn’t simply offer her a better deal beforehand, which would have left her able to negotiate “in bad faith” and make demands she knew the CBC wouldn’t meet. Except there’s little reason to think CTV would have been interested in the theme at all, until it suddenly became available.

    And, given the history at CBC Sports, the “CBC screws up again” explanation is far more plausible.


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