Editor’s Note: This article was originally posted on Medium. Nothing within should be construed as legal advice regarding copyright law.

Some people saw the controversy around the Super Bowl LIII halftime show as the politics around getting performers late in planning. Some people saw it as the drama of Rihanna turning it down in protest to a rocky NFL season full of politics.

But many people saw the controversy around one song. A song so closely associated to nostalgia that people demanded it to be played to the world in tribute to the creator who made that nostalgia possible. A song that pop culture nearly forgot, but which felt like the ultimate saving grace for the biggest game of the year… if it were played during the halftime show.

Instead of giving the 1.2 million people who signed a petition what they wanted, the crossover of a lifetime was relegated to Squidward and the trumpeters giving way to “Sicko Mode”.

But rather than address the response by the fans, let’s take a step back and look at why this unassuming song didn’t make the cut.

Admissions

I never liked Maroon 5. My reasons are needlessly arbitrary and personal, so they’re irrelevant to this story except for the fact that I first learned about what happened secondhand after the show.

I do love “Sweet Victory” though. It’s a classic of SpongeBob SquarePants, and a rare example of a stock music track being promoted to pop culture staple, next to maybe the classic Monday Night Football theme “Heavy Action”.

Both of these songs are under the umbrella of Associated Production Music (APM), a compacted mass of stock music libraries and composers built up over the past few decades of recorded music. David Glen Eisley contributed a few tracks along with KISS musicians Bob Kulick and Eric “The Catman” Singer, including the one eventually chosen for “Band Geeks”.

Avid SpongeBob fans have kept up with the giant canonical list of tracks both licensed from APM and composed in-house largely by Nicholas Carr and Steve Belfer. The show itself has a good mix of both sources that leaned toward original tracks over time, but there’s a special connection made with the ones you’re able to find used elsewhere and point them out.

The trouble comes when you then try to play it in public.

Stock Music Limitations

Library providers like APM have two main sources of profit: composing for hire, and licensing pre-composed stock music. If you want the first reason “Sweet Victory” wasn’t played on stage, you need to understand what that means for licensing.

By comparison, “Heavy Action” wasn’t actually a typical APM track. The late Johnny Pearson composed it for the BBC’s music library back in 1970 — an era before instant international digital copyrights — and the song came over the Atlantic via KPM, which was later assimilated into APM.

What ABC needed to use the song for Monday Night Football was a synchronization license, which covers the use of production music for live or pre-recorded shows as long as the network sends in cue sheets marking when any track was played. From there, APM pulled out their composers for hire to remix their own track a couple times exclusively for the show’s move to ESPN. Everyone else is stuck with the original archived version.

“Sweet Victory” is not too dissimilar, having been recorded in 1996 and released by APM in 1998, alongside the development of SpongeBob but not in any way aware of each other. The track was found by chance and made the centerpiece of “Bank Geeks”, one of many classic Season 2 episodes. The sync license is again handled by a cue sheet sent in whenever the episode — even just a clip — is aired or put on video.

That same cue sheet was ostensibly referenced when a clip of “Band Geeks” played at the stadium during rehearsals, but that’s where legal hurdles come into it for halftime.

See, to have Maroon 5 or even the original people on hand to perform a song, the organizers need another type of license — the public performance license. Normally, that requires the following:

• License and royalties to the song’s composers and publishers, via a performance rights organization
  (Bruton Metro Park, a unit of APM, is the publisher of record via BMI, but notably Nick Music licensed the song for The Yellow Album directly from Eisley and Kulick’s respective labels Ol Boot Hill Music and Koolicks Music)
• Appearance fees to the performers
  (The Super Bowl is an exception to this, owing to an unchallenged NFL tradition of covering production costs in lieu of paying the performers)
• Special licenses filed for both the 70k-seat venue (Mercedes-Benz Stadium) and the 100m-viewer network (CBS)
  (It’s presumed the venue and network pay royalties on behalf of the NFL, but stadiums play a lot of music over the PA system under a broad license anyway)

That’s just to get the song cleared to perform at the halftime show. Arrangements with Maroon 5 and their guests Travis Scott and Big Boi are made well in advance through typical management/booking channels, and the licenses are settled once they decide on a setlist, so they have to both agree to play the song and actually rehearse.

Even with the highly-publicized late start in finding their guest rappers in the first place — which clearly limited their ability to choreograph anything close to the peak performance of Bruno Mars — setlists are often set in stone rapidly to make way for the rest of the coordination.

The Caveat

If you actually watch what was broadcasted, there is one APM track that still plays. The brass band are playing the intro to a track called “Send Them Victorious” — composed by Graham De Wilde for KPM in 1982 — as they have in the original episode.

However, that track isn’t as tightly-wound with all the licensing baggage as we established “Sweet Victory” would be with live performers. Since the clip itself is separate from the artists, aside from being used as the overdubbed intro to “Sicko Mode”, the cue sheet routine is technically all they need to incorporate it into the show.

Small comfort for those who thought the organizers would completely snub the tribute? Maybe, but it exists in a different category and the transition was done mainly for the benefit of the TV audience.

But finally, there’s one aspect of the halftime show that can’t be ignored, and it’s a detail that is embedded in the inner culture of the Super Bowl.

The Billboard Effect

The whole point of having the big Super Bowl halftime show, to the eyes of the people making these decisions at least, is to have a mainstream artist and some of their high-profile friends show off for a few minutes, playing a rapid-fire set of their abridged hit singles. It’s not for the sake of a concert though — it’s for getting as many eyes on the game as possible.

Choosing Maroon 5 to play the halftime show is like, say, choosing MatPat to host a gaming awards show. It’s because enough people like their work and are invested in their public lives to show up for a “greatest hits” routine meant to build hype for the main event.

I call it the Billboard Effect because in mainstream music, the Billboard charts are basically the gatekeepers for radio stations, and thus the gatekeepers for concert and event performers by proxy. Despite the rise of home studios and indie music, the success of a major artist is largely dictated by a sustained system that favors big singles.

“Sweet Victory” isn’t a big single. It’s a stock music track with a cult audience because of a show that hit the airwaves 20 years ago. The two times it was released commercially were as a slot in a SpongeBob compilation album — which was literally the ripped audio from the episode, sound effects and all — and as a digital download sanctioned by APM themselves to capitalize on the association.

That, by the way, is made possible by way of a pair of license types called master and mechanical licenses, which respectively cover the use of an existing master recording and the selling of a composition.

Most people don’t even know the second verse or the bridge, because it wasn’t in that episode. Most people don’t know that there’s an instrumental version ripe for licensing. It’s possible nobody performing there had an inkling of awareness or interest in it either.

That’s just how it is, unfortunately.

The belated posting of a video filmed during rehearsals by Mercedes-Benz Stadium to calm the storm after the halftime show didn’t entirely help matters to some people. Compared to the labyrinth of licensing for a live performance, that was basically just a matter of adding one more item to the list for Nickelodeon to license the rest of the clip, namely the cue sheet.

Add It Up

Overall, the actual halftime performance has been received with lukewarm to negative thoughts. Many people have considered the group onstage as just “Adam Levine and backing band”, playing the same songs everyone’s heard before. In the past, it was considered a point of pride that despite not being paid for performing, the free publicity of the halftime show boosts your music sales soon afterwards. We’ll see if that holds true this year.

The game itself in many ways was received by viewers as a battle between the Pats and the not-Pats and reacted accordingly. Both the final score and viewership were at historic lows. The divisiveness brought on by caving into politics and meddling with social reforms have taken their toll this season.

Basically what I’m saying is, “Sweet Victory” might not have been present for the crowd, but compared to everything else that went wrong… it’s hardly the most bitter defeat.