The most controversial film of the year became, on release, mired in yet more controversy. Which surprised… absolutely no one.
Directed by Todd Phillips and starring Joaquin Phoenix, Joker is a brutal and unrelenting portrayal of what happens when someone falls through society’s cracks and turns to violence as both a form of release and of validation – and the violence in the film is unquestionably extreme. It has been hailed as a masterpiece by some critics (“a study in how real monsters are made” said the Radio Times in its five-star review) and enormously problematic by others (“a viewing experience of a rare, numbing emptiness” said The New Yorker).
But a short sequence in particular – where Phoenix as the Joker dances down some steps as he completes his ghoulish transformation – has raised new concerns and questions about the ethics of using certain pieces of music in a feature film.
The music he is cavorting to is ‘Rock & Roll Part 2’, the near-instrumental B-side of ‘Rock & Roll Part 1’, an enormous hit in the UK in 1972 at the dawning of glam rock. In the US, it had a curious afterlife, used regularly at sports events to pump up audiences and where it became known colloquially as ‘The Hey! Song’ due to its chant.
US audiences may only know it in that context, but in Britain it has a powerfully dark and disturbing resonance as it was co-written and performed by Gary Glitter – real name Paul Gadd – a convicted paedophile who is currently serving a 16-year sentence in Wandsworth prison after being found guilty of multiple charges in 2015. (Gadd had previously served time in the UK for possession of pornographic images of children on his computer. He was also convicted of committing sexual crimes on minors in Thailand in 2006.)
On hearing about the inclusion of the song in the film, UK tabloid The Sun claimed Glitter was set to “rake in a fortune” of “hundreds of thousands of pounds” from the use of the music in the film. In this report, the hyperbole was dialled up and the licensing specifics were dialled down.
A follow-up report by the LA Times found that things were not quite that simple.
It turns out the sound recording is owned by Snapper Music. It acquired Glitter’s catalogue in 1997, mere months before his dark actions became public, making this perhaps the most poorly timed music purchase in history. “Gary Glitter does not get paid,” a UK spokesman for Snapper said, speaking to the LA Times on condition of anonymity. “We’ve had no contact with him.”
The song is a co-write with Mike Leander whose share is controlled by BMG. Glitter’s share, however, is controlled by Universal Music Publishing. “Gary Glitter’s publishing interest in the copyright of his songs is owned by UMPG and other parties, therefore UMPG does not pay him any royalties or other considerations,” a spokesperson told The LA Times. While UMPG is adamant it does not pay royalties to Glitter, it is unclear if the “other parties” mentioned here do.
There is also the matter of performance royalties that, depending on the market, could be payable to Glitter for his musical and vocal contribution to the master recording, assuming he has not sold them off. So while it can be assumed that Glitter, due to a variety of licensing and ownership issues, is not going to get the “hundreds of thousands” The Sun claimed, it is still not definite that he will get nothing.
The British tabloid returned to the story a few days later and claimed Warner Bros., in light of the controversy, is now looking to expunge the use of the track from the film when it is eventually made available on DVD and streaming services.
Glitter, in light of his convictions, had already been removed from things he appeared in – including a cameo in Spice World: The Movie back in 1997 just before it was released as well as assorted appearances on re-runs of Top of the Pops filmed during his pop career. He does, however, remain listed as a co-writer (alongside Mike Leander and Noel Gallagher) on ‘Hello’, the opening track from Oasis’s second album, (What’s the Story) Morning Glory?, because of that song’s referencing of ‘Hello! Hello! I’m Back Again’, a 1973 hit for Glitter.
It is a convoluted and messy story that raises a lot of thorny questions about ethics, music licensing and if criminals should be allowed to continue to profit from their intellectual property. It also raises a complex debate about due diligence in music licensing and if a “don’t ask, don’t tell” should be adopted when a sync request comes in for a problematic catalogue.
“It is a convoluted and messy story that raises a lot of thorny questions about ethics, music licensing and if criminals should be allowed to continue to profit from their intellectual property. It also raises a complex debate about due diligence in music licensing and if a “don’t ask, don’t tell” should be adopted when a sync request comes in for a problematic catalogue.”
This was all raised back in the 1990s when Guns N’ Roses covered ‘Look At Your Game, Girl’ on The Spaghetti Incident? album in 1993 – a song written by Charles Manson. (GNR singer Axl Rose had previously worn a T-shirt with Manson’s face on it on stage, making him part of a long line of rock stars who had a ghoulish interest in him.) The track remains on the album on streaming services. A similar issue with the same Manson song arose again this year in 2019’s other most controversial film – Once Upon A Time In Hollywood – which not only features an actor playing the cult leader but also has members of his cult singing it a cappella.
The Daily Mail quotes an anonymous source that claims director Quentin Tarantino only agreed to use the song “after being assured that any money from its use would go to the victims’ families” (i.e. those killed by members of the Manson cult). As Manson died in 2017, the Mail adds that an ongoing and protracted legal tussle over the Manson estate could see his grandson, Jason Freeman, take ownership of it all. Which begs a wider issue about if the estate of those convicted of horrific crimes can and should make money from their copyrights. If the author is dead, is it now more morally acceptable that their IP can be used to generate income for the estate and those who control it? And what if the estate diverts all its profits to charity?
The list of musicians and songwriters convicted of crimes is far from short – ranging from what some might easily turn a blind eye to (alcohol- and drugs-related convictions, theft) to physical assault, weapons charges and even murder. Where one draws the line about who should and who should not be excluded from licensing and royalty opportunities is increasingly complex. Is a DUI conviction OK if they only injured themselves but not OK if they injured or killed someone else? Is use of a firearm acceptable as long as they never caused actual death? The moral maze here becomes ever more labyrinthine.
One music sync expert, when asked abut the Glitter/Joker case said, bluntly, that it all boils down to cold business decisions.
“The music supervisor for the film will have selected the work and the production team will have looked at it,” they suggest of how the track came to be licensed within Joker in the first place. “The question is whether a US supervisor and production team will be as aware of Gary Glitter’s non-musical notoriety as a UK audience would immediately be.”
But would the licensing party have a moral and ethical obligation to raise this with the studio and/or director looking to use a tainted track? No, says the same expert. “Frankly, as businesses with a dying asset or dead asset, it is their responsibility to approve the use and generate what income they can from it.”
They also raise the issue of if a co-writer should be unduly punished and lose out on potential earrings due to the bad luck – or the bad judgment – of having collaborated with someone who turns out to be the most horrific kind of monster.
“It’s like the Lostprophets,” they say, referencing the band whose lead singer Ian Watkins is a convicted sex offender whose crimes are among the most repulsive imaginable.“Why should the rest of the band all starve?”
They argue that Joker was designed from the ground up to be controversial and the knowing use of a Gary Glitter song must therefore be understood from that perspective.
“I don’t think that finger pointing and blaming for its use is particularly helpful,” they say. “And I don’t think there is a moral obligation on a business –a record company or music publisher – to refuse income from an asset that they have previously paid for.”
They add, “They have paid for the creation of this work but it has become close to valueless to them. I would say that they should take what opportunities they have to generate income from it.”
We live in a time where controversies can fire up in an instant and every decision is held up to the light of moral and ethical accountability in not just the media but also social media. The age of Cancel Culture can see books, TV shows, films and music all judged to be lacking in, or utterly devoid of, moral fibre and, even if one person in the complex web of ownership (writer, label, publisher, performer), has done something beyond imagination then everything around it must stop.
“Maybe the only way through this – if a particular song, no matter the scale of controversy around its creator, is being used in an artistically justifiable way – is if licensing partners donate all their shares to a charity or a victims’ fund. Even if they have bought out all the rights from a convicted criminal, there is a moral onus on them to do, and to be seen to be doing, the right thing.”
Maybe the only way through this – if a particular song, no matter the scale of controversy around its creator, is being used in an artistically justifiable way – is if licensing partners donate all their shares to a charity or a victims’ fund. Even if they have bought out all the rights from a convicted criminal, there is a moral onus on them to do, and to be seen to be doing, the right thing.
Art is sometimes created by abhorrent people – they might be abhorrent to begin with or they may go on to do abhorrent things – but if we start to wipe everything by anyone with any stains (no matter how big or small) on their character then we will be left with slim pickings.
The moral conundrum for everyone here – as laid out in the starkest possible terms with the cases this year of Glitter and Manson – sets a challenge for everyone in music and film to work towards some sort of ethical licensing code. Because just profiting – and doing or saying nothing about it – cannot be the only response.
