Boardwalk Empire - Public Domain At Its Best

So many of us are drawn into alternate realities, often, by television, the
ubiquitous media that permeates the human race. But basic cable hardly offers
what we crave. Enter Home Box Office (HBO).

HBO was responsible for the Sopranos, the show about a New Jersey gangster
and his family, which ended three years ago. It is also responsible for the new
gangster show, Boardwalk Empire. HBO also broadcasts Entourage, the show based
on Mark Wahlberg’s experiences as an up-and-comer. HBO can also claim Oz, Sex
in the City, and Six Feet Under as its own productions.

After watching episodes of each of these shows, it becomes apparent where
the producers can save money without the audience really noticing. Because if
there is one thing you want to avoid as a producer (at least if you are
postured like HBO), it’s the appearance of frugality. Viewers do not want to
watch a show and say, “Wow, they must have done this for very little
money,” because if they did, firms like HBO would hardly be able to
justify their premium on top of cable. In fact, many viewers attain
satisfaction from a show, such as Boardwalk Empire, when they watch the show
and think that everything in it came with a large price tag
All of these shows have the commonality that, if they are successful,
advertising can be sold, product promotions may become common place, and there
is also the holy grail of syndication. These are all ways to save and make money,
but they do not appear (at least no pervasively) until the show has enjoyed
some success. Also, advertising, clothing promotions, and syndication are
usually noticeable, even by the less than discerning viewer. Even Joe Schmoe
knows when he’s seen enough advertisements, when every character drinks a
Coca-Cola with the label showing, or when he is watching a rerun.

So, how does HBO save money while still convincing the average viewer that
no expense is being spared? By taking advantage of the public domain. The
public domain consists of works that are not protected by copyright or related
rights, and it is free for anyone to use.

For example: in one of the birthday episodes of Entourage, the guys all sing
the song: Happy Birthday. This is an expensive undertaking because Happy
Birthday is under copyright and is owned by AOL Time Warner. The ownership
interest is worth about $2 million per year. Elsewhere
in the same episode, the guys can be seen watching an old black-and-white
movie. The movie is likely in the public domain, meaning that the expensive
license acquired for the right to sing Happy Birthday was offset by the free
license for use of the movie.

In Boardwalk Empire, use of the public domain is more apparent, especially
in its wonderful soundtrack. Boardwalk’s music consists of several songs that
are likely from the public domain: “So Long, Oo Long (How Long You Gonna
Be Gone)”, performed by Seabreeze Park Wurlitzer Band Organ, was written
by Al Bernard in 1920; “Battle Hymn of the Republic”, performed by
Vince Giordano and the Nighthawks, was written by Julia Ward Howe in 1861;
“Tenting On the Old Camp Ground”, performed by Seabreeze Park
Wurlitzer Band Organ, was written by Walter Kittredge in 1863; “Some of These
Days”, performed by Sophie Tucker, was written by Shelton Brooks in 1910; “String
Quartet No. 5 in F Minor” was written by Joseph Haydn in 1772; “By the Waters
of Minnetonka”, performed by Zen Confrey, was published by Thurlow Lieurance in
1913, but he borrowed the melody from an older Indian song; “Good Morning,
Judge” was recorded by Sophie Tucker sometime between 1920 and 1922; “Don’t
Take Away Those Blues” was originally performed by Flo Bert between 1920 and
1928; “An Old Fashioned Garden”, was first performed in the early 1900s by
Olive Kline; “I Never Knew I Had A Wonderful Wife”, performed by Vince Giordano
and the Nighthawks Feat. Stephen De Rosa, was written by Lew Brown and Albert
von Tilzer in 1919; “Fascination”, performed by Craig Duncan, was written by
F.D. Marchetti in 1905 and published in 1932.

Songs published prior to 1923 are presumptively in the public domain,
meaning that you or I could use the same song and make a profit from it. The
songs published well before 1978 are in the public domain if their copyright
protection has lapsed. That doesn’t mean that you can download the songs as
performed by the artists on Boardwalk Empire. But you could use the sheet music
as you wish, which is what the producers of Boardwalk did. The producers of
Boardwalk paid good musicians to perform the public domain songs for use in the
television show. Thus, the producers were able to remove the cost of having to
pay for a license to use the underlying sheet music by taking advantage of the
public domain.

Additionally, any of the publicity rights associated with the characters
represented on Boardwalk are likely free to exploit, as many of the characters
depicted, such as Al Capone, died decades ago. The story for Boardwalk Empire
was lifted from a factual history of New Jersey written by Nelson Johnson,
which was experiencing slow sales at the time, and was likely lifted at a
relatively small cost for that reason. Facts are very similar to works in the
public domain because neither are protected by copyright – copyright protects
not facts or ideas, but the expression thereof. Thus, I submit that the show,
which seems lavish, and really is, is also not as expensive a production as one
would think at first view. Like many shows, it takes advantage of the public
domain. Like few shows, it does it with seamless elegance.