FRIDAY, OCTOBER 27, 2006
Non-Exclusive Re-Titling Deals: A Boon To Writers, Or A Boom In Litigation? If you are a songwriter or composer interested in getting your music placed in film and television, you should read the letter posted below. I, and apparently a lot of other people in the business end of licensing for film and TV, got it in the mail recently, and it’s creating something of a stir. The person who wrote it is clearly an insider and wants to remain anonymous (just like me – and probably for the same reasons) , but the information it imparts could make a difference in your future, and for that reason I decided to take the time to copy it and post it here for EVERYONE to read. So, pass it around!
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Non-Exclusive Re-Titling Deals: A Boon To Writers, Or A Boom In Litigation?
(An open letter to licensees of music for film, television and other media.)
As a producer I have lately discovered, quite by accident, a disturbing new trend in music licensing that I believe others should know about. This trend is manifested by a novel writer/publisher agreement referred to as a “Non-Exclusive Re-Titling deal”, or sometimes a “Sub-Licensing deal.”
This anomaly first came to my attention when our music coordinator pointed out that one particular song had been submitted to our show under three different titles by three different music vendors. I may not be the sharpest knife in the drawer, but red flags went up immediately: How can three publishers each control 100% of the rights in the same composition without a conflict? (No, they weren’t co-publishers of the song.) If we are licensing songs from publishers whose rights are so obviously disputable, how long will it be until we find ourselves as defendants in some infringement litigation? Would our standard indemnification language still protect us?
Out of curiosity (and a deep sense of self preservation) I did a little detective work, and that’s when I discovered this new type of agreement. It goes by different names with subtle variations on the theme, but the essence is the same. Here is an excerpt from an actual sales pitch directed toward songwriters and composers that summarizes the concept:
“Finally, a fresh new approach to getting your music placed in film, television and advertising.
- You keep 100% ownership of your copyrights and publishing.
- It's a non-exclusive deal. You EVEN can place your music with other services.
The above is a perfect condensation of the plot, but let me unfold a little more of it by offering an expanded pitch by yet another prominent independent music vendor that does business this way: (The following is verbatim except that the names have been changed.)
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Allow me to explain how your music can be placed non-exclusively in the XYZ Music Library and used on network television and DVDs, in advertising and other projects without infringing on your ownership of the songs or conflicting with any other present or future plans you may have for use of the music, such as recording contracts, movie and/or television placement, or placement with other artists for recordings.
1. Without infringing on your rights as sole owner of "I Love My Dog", XYZ would license from you the right to use (nonexclusively) an identical version with the new title "My Dog Is Love". This re-titling does not create a new copyright, but merely allows XYZ to register this new title with ASCAP and BMI, creating a new set of payment information for the new title only.
2. A contract is then signed between you (the sole owner of the original title and the new title) and XYZ Music. XYZ Music now becomes the publisher of "My Dog Is Love" while you retain all of your songwriter's share of the new title, and, of course, all composer and publishing rights to the original title, which is unaffected by this new agreement.
3. The new title, "My Dog Is Love", is included on a CD titled "Pop/Alternative Volume 3", along with other songs in the same genre. This CD is then distributed as part of the XYZ Music Library to our various clients in the television industry.
4. If a music editor uses "My Dog Is Love" as the jukebox or background music in a restaurant scene on a network daytime drama, for example, the editor would then fill out a cue sheet for submission to either ASCAP or BMI indicating the day of use, how long the use was, the show number, and your name as composer and XYZ as publisher.
5. Currently, the ASCAP composer's share for background music on a daytime drama is about $130.00 per minute, so if the scene was three minutes long, you as writer would receive approximately $400.00 for that single use when your quarterly performance royalty check arrived at your mailbox. Primetime and feature rates are significantly higher.
6. When a feature film is made into a DVD, quite often the commercial trailer or other materials are included on the DVD as "Extra Features". When this happens, it is common practice to replace the expensive music from hit artists with similar songs that can be licensed much more inexpensively. If "My Dog Is Love" was used to replace a $50,000 Goo Goo Dolls track from a feature film trailer, for example, XYZ would receive a master license fee of anywhere from $500 - $1500 for that single use. Like any and all licensing money that we receive, XYZ would split this fee with the song's composers on a 50/50 basis.
7. If, after signing a contract with us, you then sign another deal for the original title "I Love My Dog", there's no problem. Our involvement is only with the new title, which is exclusively for our use. No one else can use the new title, and we have no rights to the original one. This allows for all income streams and accounting procedures to be kept completely separate.
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Of course, the above raises more questions than it answers, such as:
1. If XYZ’s interest and “control” is limited to song titles, on what legal basis are they able to grant a license? Copyright is held on the underlying composition, not the song title. Song titles are not copyrightable, so possessing some “exclusive right” to the title “My Dog Is Love” should not give XYZ the right to license anything at all.
2. If XYZ’s right to grant a license is based on the premise that they hold some sort of special license from the rights holder (a sub-license of some kind perhaps?), then won’t XYZ’s control of those rights come into conflict with any future publisher who is assigned those rights exclusively? There is nothing in their agreement that restricts the writer from subsequently assigning exclusive rights (in fact, they seem to encourage it) however, if XYZ’s rights are not also transferred, what then becomes of extant licenses that were not granted by the publisher now holding exclusive rights? Would something about this constitute an infringement? If so, who would be liable?
3. If rights are being assigned to XYZ in the actual agreement, then isn’t XYZ lying to writers in this pitch? I have read some of these agreements and, in fact, there are substantial differences between what was said and what is written. Of course, this is “Hollywood”, and hype is one of the languages of our cynical business, but such deception crosses the line and does not bode well for the continued integrity of these agreements. Hopefully, when these writers and composers realize that they have been bamboozled and hobbled, rather than liberated by their choice, their ire will not affect us directly. Or is it toward them that any ire should be directed?
4. Finally, if the writer can sign as many of these deals with as many other publishers as he likes, how long will take until music supervisors start getting the same song – only with a different title – a dozen times a week? If I were a music supervisor I believe I would find that most irritating and unsettling.
The more I think about it, the more questions come to mind, but I promised myself that I would keep this missive as short as possible. To that end I will not offer lengthy speculation as to why publishers are offering these agreements, or why writers are signing them. Suffice it to say that, as for the publishers, I’m sure it has to do with supply and demand problems. As for the writers, maybe it’s enough to say that they – God love ‘em – have always dreamed of the Ultimate Free Lunch, and these deals must seem to be just that. As always, they will learn the hard way. But we don’t have to.
Solutions? I wouldn’t presume to tell you how to run your business, but here’s the advice we got:
1. Start putting out the word that we will only work with music vendors who are the exclusive representatives of the music they offer. Of course, not every non-exclusive publishing agreement is bad news, but by eliminating this business model from the equation, most risks are averted. Ultimately we may decide on a case by case basis, but each exception will have to be thoroughly vetted.
2. Identify vendors who use the re-titling business model and drop them from the roster of approved companies altogether. There will be no exceptions to this. Needless to say, going forward we will not be using any music in our possession offered by these companies.
3. Identify and contact vendors who are exclusive publishers/reps and add them to our list of approved companies. Whether we actually use their music or not is another matter, but we should anticipate at least some temporary reduction of supply and be prepared for it.
Implementing the above should take care of 98% of the problem. For the rest, we intend to shore up our indemnification language to address this problem specifically. We will no doubt learn as we go and close up any gaps as time goes by.
In any event, if enough of us say “no” to these deals, eventually vendors will stop offering them to writers, and, with any luck, the problem will evaporate before some precedent setting lawsuit decides it for everyone. In fact, I’m happy to report that some astute publishers have apparently already seen the writing on the wall and are letting us know that they are exclusive publishers…no re-titling…etc. Good for them.
Finally, I apologize for remaining nameless, but this is about as Silkwood as I’m going to get. As you have no doubt also noticed, I have left these companies nameless, but you can be assured they are out there, and if you are doing any business at all, you are probably doing some of it with them.
Cheers
POSTED BY LYNNDRIEZ AT 10:27 PM LABELS: FILM AND TV LICENSING, SONG PLACEMENT, SONGWRITERS, SONGWRITING 1 COMMENT:
Anonymous said... This is very interesting. I'll pass it around. Thanks!!
I love great art, no matter the medium.