Federal law gives copyright owners a legal monopoly over public performance of their works, among other uses. But their market power is supposed to be limited by the competition from other copyright owners. Consider the case of songwriters. Paul McCartney can make you pay for the privilege of including "Jet" in your movie, even if it's recorded by Shonen Knife instead of McCartney's Wings. But if you don't like what he charges, you can write your own material or go to another songwriter who demands less.

Unless you can't go to someone else. That's the problem TV broadcasters face when they air syndicated programming. They're contractually bound to air the programs they buy with the music that's already in the soundtrack. As a result, they have zero leverage with songwriters when it comes to negotiating for the rights to broadcast those songs. A group of broadcasters has now gone to federal court in New York for help, filing a class-action antitrust lawsuit against SESAC, one of the three performing rights organizations representing songwriters and music publishers. (You can download a copy here.)

The complaint was filed Wednesday afternoon by lawyers from Weil, Gotshal & Manges, and SESAC hasn't offered any comment yet. It singles out SESAC, the smallest of the performing rights groups (the others are ASCAP and BMI), for two reasons: SESAC's stable of composers includes many of the leading music writers for TV and commercials, and the other two rights groups' rates are already overseen by federal courts through longstanding consent decrees with the Justice Department.

Not being a lawyer, I won't try to guess how strong the broadcasters' case is. What's interesting to me about this case is that, unlike many of the lawsuits I write about, it doesn't challenge the breadth of the copyright owners' rights. Instead, it challenges how they're being used. According to the lawsuit, SESAC gives broadcasters the choice between buying a blanket license — the right to make unlimited use of all the music in SESAC's repertoire — or buying rights for songs on a per-program basis. But SESAC increased the cost of the per-program deal so much in recent years, it has become uneconomic, the lawsuit contends. As a result, broadcasters have been stuck buying ever-more-expensive blanket licenses, rendering moot their efforts to shop around for programs with less costly sources of music. In other words, SESAC is accused of eliminating the competition that mitigates the copyright holders' monopoly power. Meanwhile, the lawsuit claims, SESAC has used the higher fees it's been collecting to attract more soundtrack and commercial composers, tightening its grip on the market.

The broadcasters asked the court for a permanent injunction barring SESAC from fixing prices and other anticompetitive behavior. If they succeed, SESAC could find itself in the same court-supervised posture as ASCAP and BMI. But another way to restore the full benefits of competition among songwriters would be to have the producers of TV shows and commercials obtain the performance rights to the music they use, on top of the sync licenses and other clearances they routinely negotiate for. (Most networks obtain the performance rights for the new shows they produce for their stations and affiliates, but not for the same shows when they're sold into syndication.) As it is, the competition among songwriters ends as soon as a soundtrack is picked. That's why SESAC is allegedly in position to make take-it-or-leave-it offers to broadcasters, who have little choice but to take it.

-- Jon Healey

Columnist Jonah Goldberg foresees clouds ahead for the Democrats -- in fact, a coming storm so severe that it could end Democratic control of Congress. It's building from the Tea Party movement, which Goldberg sees as an heir to the Ross Perot third-party movement of the 1990s. "If the GOP can convincingly align with and exploit the growing Perotista discontent, it very well might ride to victory on a tsunami the Democrats can't even see."

Also on today's Op-Ed page, scholar Giles Dorronsoro explains why U.S. attempts to win hearts and minds in Afghanistan's Pashtun areas in the south and east are probably doomed to fail. And ACLU National Security Project chief Jameel Jaffer decries an attempt by Congress to circumvent the courts by giving the secretary of Defense the power to withhold photographs of combatants "engaged, captured or detained" by the U.S. during the Bush administration.

On the Editorial page, The Times weighs in on Atty. Gen. Eric Holder's policy change on medical marijuana. Though we're happy that federal prosecutors will make marijuana cases a low priority in states like California that have passed laws approving its medicinal use, we think that's the wrong approach. The administration shouldn't be picking and choosing states in which to enforce federal law -- rather, it should de-emphasize medical marijuana cases in all 50.

We also note that the best place for local health departments to conduct swine flu vaccinations is at public schools -- yet that's not where the inoculations will take place in Los Angeles, thanks to a failure by the school district and the county to properly coordinate.

And we muse on the bizarre spectacle presented by Colorado's Heene family, accused of perpetrating the "balloon boy" hoax in an attempt to drum up publicity for a reality show. "As much as some people will do just about anything for a Hollywood contract, a good number of the rest will lap up the juicy story of their wrongdoing. In reality, perhaps we all get what we wanted."

Illustration by Jonathan Twingley / For The Times

Who needs reality shows when we have fiction parading as reality? Or is it the other way around? First there was the media's breathless, moment-by-moment coverage of the silver balloon floating above the Colorado landscape, supposedly with a 6-year-old boy inside. The dramatic crash landing, the discovery that the boy was safe at home, not in the balloon. Then comes the Larimer County sheriff's office accusation that the parents, Richard and Mayumi Heene, plotted the whole thing as a hoax to try to wangle their way into a reality-show contract, only to be undone when 6-year-old Falcon revealed during an interview that he had hidden himself for hours because "You said we were doing this for a show." Lots of reality show in that moment.

Kids do say the darnedest things sometimes.

If the accusation against Ma and Pa Heene is true, the incident obviously reflects the bizarre extremes of our anything-for-a-Hollywood-contract society. It's just hard to figure out what's most bizarre: That people would concoct such an elaborate and expensive hoax, that they would obliviously imagine that no one would suspect, or that they actually would think this whole thing had legs as a reality show that anyone would want to watch. Then again, after Nadya Suleman the Octomom got her own show, who am I to be surprised? Not that she's taking much audience share with her so far.

Oddest of all is that the Heenes might get exactly what they supposedly wanted, if not precisely in the way they'd allegedly planned. The story of deal-obsessed parents going to extreme lengths to get their moments on TV should be good for at minimum an exclusive People mag interview. And if the case really goes all the way to a conviction and sentence, imagine the mileage to be gotten out of the parents' lives as they concoct a video series taped from prison. Think of the family reunions and the cute things Falcon will say next. Beats Jon and Kate any day.

Photo of Richard Heene with sons Ryo, middle, and Falcon. Credit: David Zalubowski / AP--

--Karin Klein

 

Los Angeles prosecutors are giving famed film director and convicted child molester Roman Polanski a chance to spend more of his millions on criminal defense lawyers. Swiss gendarmes served an arrest warrant on Polanski on Saturday at the request of the U.S. Justice Department, which in turn had been acting at the request of L.A. County Dist. Atty. Steve Cooley. The warrant stems from Polanski's guilty plea to having unlawful sex with a minor in 1977 -- a downgrade from the initial allegation that he drugged and raped an aspiring 13-year-old model. That's a bit young, even for sophisticated European men of a certain age. Polanski fled before he could be sentenced in 1978, after Superior Court Judge Lawrence Rittenband refused at the last minute to go along with the plea deal, which did not call for Polanski to receive any more prison time than the 42 days he'd already spent there. Since then, he's been hiding in plain sight in France -- a country that refused to honor U.S. extradition requests -- and other countries in Europe. He will fight efforts to extradite him from Switzerland, his lawyer said today.

During Polanski's exile, his victim sued him, collected a settlement and publicly offered her forgiveness. Some folks think county prosecutors should do the same. What about you?

Photo: A show of support for director Roman Polanski at the Zurich Film Festival, where the director had gone to receive an award. His arrest canceled that appearance. Credit: Ennio Leanza / EPA

-- Jon Healey

We're all against censorship of books in this country, right? Especially by libraries. Sexual content, unpopular viewpoints, even true stories of male penguins who partner to raise a chick.

But the New York Times today reports on the decision of the Brooklyn Public Library to relegate one of the books in the cartoon-adventure Tintin series to its back room where it is kept unavailable to the public, even upon request. Some library patrons have objected to "Tintin au Congo," first published 69 years ago, feeling that it depicts Africans as mentally simple and physically like monkeys. Those who find the book offensive might have found an ally in author and Belgian cartoonist Herge, who died in 1983 but in his later years said he regretted this early work and that he had been overly influenced by an editor who wanted to depict the glories of colonialism.

So like many a public figure, Tintin, who will make a modern-day appearance in a forthcoming Steven Spielberg movie, continues to be haunted by his past. The question is how to view that earlier work now. Is it truly offensive, and if so, should it be hidden away or available as a relic of another day, another way of thinking?

Photo: A tourist takes a picture of Tintin at a 2006 exhibit in France. Credit: Jacques Demarthon / AFP / Getty Images 

-- Karin Klein

The editorial board mulls over a few topics today, starting with healthcare for illegal immigrants in the proposed reform bill currently floating through Congress. While the editorial board says it may be economically sound to extend coverage to illegal immigrants, it concludes that including such a provision in the bill would kill the measure.

Comparing Hollywood's stance on restrictive Chinese policies to the studios' opposition to novel technologies in the U.S., the board admonishes the studios for attempting to centrally control how people consume their products:

Finally, the board argues that although gay and lesbian couples should not have to wait -- or campaign -- for their right to marry, the Equality California and Courage Campaign should unite their efforts and wait to put a revamped Proposition 8 on the ballot in 2012 instead of 2010:

On the op-ed side of the pages, Robert M. Hertzberg and Thomas McKernan, co-chairmen of California Forward, lay out their solution to California's budget crisis and preventing this year's mess from happening again. Their plan includes keeping government local, defining agencies' goals and purpose in the budget and the institution of a two-year budget as well as a pay-as-you-go approach to new programs.

Emily Green, author of the weekly Dry Garden column for the Los Angeles Times, writes in about Southern California's rather silly obsession with green lawns and argues that brown is both natural and beautiful.

Finally, columnist Gregory Rodriguez responds to those who have decried the disruptive protesters who have been coming out in droves to town halls about healthcare in the past couple of weeks. His thoughts? It's as American as apple pie, and a crucial part of the democratic process (as annoying as it may be):

Image: Jimmy Margulies / The Record

-- Catherine Lyons

The Los Angeles City Council plans to vote Tuesday on a proposal that would bring a new Cirque du Soleil show to the Kodak Theater for a 10-year run, provided that the city agrees to provide a $30-million federal loan from the Department of Housing and Urban Development.

The loan program is specifically for projects that promote economic development and job creation. Proponents of the Cirque du Soleil proposal, including the Community Development Department that gave the OK earlier this week, say the show would create more than 900 jobs at the theater and the Hollywood and Highland complex. The report that details a plan for the jobs that will be created is still under wraps, however.

The Cirque du Soleil show is expected to fill 85 percent capacity, as most Cirque shows do across the globe, event though tickets will cost $110 each, and the show will run twice a day. Officials at the CDD say the demand is there and tourists will come to Hollywood just to see the show.

The editorial board is mulling this proposal over, and we'd like to hear your thoughts on it. Click here to find the full report on the loan.

--Catherine Lyons

Credit: AP Photo/THE CANADIAN PRESS/ Jacques Boissinot

Whatever the wisdom or folly of President Obama's now-notorious comments about the arrest of Henry Louis Gates Jr. (I vote for folly), the president has added a new figure to the pantheon of instant political celebrities already inhabited by Joe the Plumber and Frank Ricci, the much-lionized plaintiff in the firefighters case that has bedeviled Judge Sonia Sotomayor.

By calling Sgt. James Crowley to sort-of apologize for telling a nationally televised news conference that the cops had "acted stupidly" when they arrested Gates, Obama may have guaranteed the officer more than a beer with Obama and Gates at the White House. Maybe Crowley could alternate with Joe the Plumber as a commentator on Pajamas TV or do guest shots on "Law and Order" or "COPS." An entire show might even be built around him: "CSI Harvard."

Companies that offer downloadable movies and music online without licenses from the copyright holders typically wind up answering lawsuits from the Hollywood studios and the major labels. So it was odd to see a news release announcing the impending launch of Zookz, a site that offers unlimited music or movie downloads for about $10 a month (or both for $18). That's a bit like waving a red cape in front of a couple of bulls, isn't it? But Zookz believes it's in the clear, legally, thanks to the World Trade Organization. It's a far-fetched argument, but you've got to give Zookz credit for nerve.

The main differences between Zookz and most online outlets for bootlegged goods are that it's not a file-sharing network and that the content isn't free. Instead, it's just insanely cheap. The company's impossibly low prices reflect the fact that it doesn't pay for most of its inventory or share revenues with  copyright holders. All the proceeds go to Zookz, its 10-person staff in St. Johns, Antigua, and (through taxes) the Antiguan government.

How can it get away with this, you ask? I'm not sure it can, but here's its argument....

As the California State Assembly adjourned around 11 a.m. today (that's, what, a 3 hour workday?) with no apparent progress made in crafting a budget the Governor would sign by the Tuesday deadline, Assemblymen Sandré Swanson (D-Oakland) and Mike Davis (D-L.A.) suggested it was time to buckle down and figure this out.

Er, no, wait. They stood to honor Michael Jackson as the King of Pop that he truly was, and Farrah Fawcett as every man's favorite pin-up girl, before taking the rest of the day off:

It's all well and good to honor notable Californians who have passed away. Still, I would have preferred to hear such tributes at the end of a normal business day -- or, in the case of this group of legislators, an extraordinary day -- in which some movement were made toward enacting a new budget. Especially considering that the alternative is California issuing IOUs for the next fiscal year.

--Catherine Lyons

Photo: Assemblywoman Noreen Evans, D-Santa Rosa, chair of the budget conference committee, left, consoles State Sen. Denise Ducheny, D-San Diego, chair of the Senate budget committee after the Senate fell short of the necessary two-thirds vote to approve a package of budget related bills at the Capitol in Sacramento, Calif., Thursday, June 25, 2009. Credit: AP Photo / Rich Pedroncelli