I got back this week from running a four hour workshop on music licensing at the World Audio Branding Congress held in Berlin http://audio-branding-academy.org/aba/congress/audio-branding-awards-2015/workshops/ .. Specialists from 18 countries participated, with delegates ranging from people who have run substantial music supervision companies for years to a sprinkling of new comers to the field. An extraordinary assembly of some of the best music minds in the business from around the globe.
Yet during the morning, as we stripped back the licensing process and got to the section on ‘Looking after No 1’, I discovered that most people go straight to the “Schedule’ on a license and rarely read the contract itself. As Tom Waits sang in Step Right Up ‘The large print giveth and the small print taketh away.’
Yes I know that legal language is tedious and most of us automatically click ‘agree’ to the T&Cs on online platforms in our hurry to get to the rewards. (I often wonder what we have all signed up for with iTunes) But ignoring the warranties, assignments and liabilities clauses on a synch license, has more serious repercussions and it would seem that very few people are actually not looking after No1.
Beware the owner who says in the small print, ‘We have the rights to grant you this license with the exception of …’ and then lists reasons why if it goes wrong they will hold up their hands and say –“not guilty and here is your fee back.” If things do go wrong, the liability lies with the person who has signed the contract.
Too often contracts bypass the brand completely. Sign off is done inside the agency, usually by the TV producer, who is not necessarily on permanent staff. If the brand changes agency – what does the contract say about assignment of rights? If things do go wrong, the brand is the most obvious target for litigants. And yet this may be the first time that the brand is aware of what has been signed in their name.
Where does the liability lie with the licensing of an existing ©? Who is responsible for clearing the MU or SAG or Equity? Who is checking that any samples have been cleared or if the license includes all the small percentage owners who may be with other publishers? The list goes on……
Somebody asked – ‘does anybody actually read this?’ The answer should be obvious.
Another aspect of liability that is often overlooked is on the creative side. An agency pushes a music supervisor to create an ‘inspired by’ new master recording. They omit to tell him/her that they have already made several unproductive calls to the original copyright owner. What the agency really wants is a track just like the original © but slightly different and for less money. In legal terms this is called intent to pass off. Most people in the workshop admitted when they know that they are sailing too close to the wind, they are scared to tell the commissioning team for fear of being seen as ‘too difficult to work with’.
When ‘inspired by’ feels like it has become ‘passing off’, both sides immediately turn to musicologists. One certainty in doing this is that the musicologist will support whoever is paying their fee. From there it descends into lawyers, threats and often a large settlement.
I learned this early in my career. The opening scene of Chariots of Fire had become folklore. Ford had mimicked the scene using the original Vangelis recording. Clarks had made a similar ad with a library ‘inspired by’ track. Vangelis sued. The resulting court case had everything: a major artist in transition from one publisher to another, a change of artist management, two departments of the same publishing company licensing both the original and the library track, a battery of musicologists and an army of lawyers. To the best of my knowledge, it is the only injunction in the history of UK advertising. I don’t recommend it and I was on the winning side!
For much of the time the licensing process is reasonably straight forward and for those who want to do DIY licensing, check out ://www.licensing-music.co.uk/jargon-buster/. The challenge is that the curved balls come hard and fast and out of the blue.
I ended this session with a simple question. “How many of you carry Professional Indemnity?” Of the 40 or so attendees I was shocked to see only two hands go into the air. With so much potentially at stake, surely it should be mandatory protection for every 3rd party involved in music supervision?