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There is a lot of controversy about the practice of retitling music by music libraries that offer non-exclusive deals. Retitling allows the composer to place their music with many companies thus widening the opportunities for getting their music heard and thus sold. Some think this “de-values” ones music while others think it’s unethical or possibly illegal.
hello everyone, i wanted to ask everyone about their experience with retitling.
it seems most independent music licensing service’s re-title. i understand why….
but specifically for adverting/brand music, from my experience i know that most advertisers require, or want, an exclusive while a commercial is active.
i also understand for film and tv placement music buyers might not care about re-titling.
i find it odd how indie licensing outlets can offer an “exclusive” on any given track when the same master and song most likely exists as another title on other licensing site.
i have heard of “exclusive” tracks crossing over because of this practice. that can cause some major legal problems and headaches.
so, specifically for adverting/brand music, doesn’t it seem like a potentially misleading business practice to offer an “exclusive” when the same songs exist some where else?
has anyone had any experience on this particular subject relating to advertising/brand placements?
I would assume that any library offering exclusivity to their clients would actually own the rights. If not, they’re being reckless and practically begging to get sued.
Do you have any examples?
hi matt, yes….i am aware of at least 2 cases where tracks overlapped. there is one big non-exclusive library that re-titled a track, sold a time based exclusive to a brand, and that same track showed up in another brands commercial via a different non-exclusive library that also re-titles. but, i don’t think i should mention any names here.
i get why they re-title for a film or tv drop. i also understand there are some instance’s where a brand doesn’t want an exclusive. but most of the time they do when they pay a 5 figure fee, which is often.
it blows me away that anyone would offer an exclusive on a title, fully aware of the fact that the same song or track could be available through another licensing source.
bottom line is…you either own the exclusive or you don’t.
@ Composer & Matt,
It would seem that any re-titling library engaging in the placement of such non-exclusive tracks — yet claiming those tracks (and the compositions contained therein) are “exclusive” to their library — would be in breach of contract with the composers/artists who have written the music (and lyrics if applicable) & recorded the works — who have signed non-exclusive agreements with the library.
If, as the libraries claim, they are merely re-titling and taking a portion of publishing on that TITLE in order to claim revenue streams from their efforts, and are NOT claiming any exclusive copyright participation, it would seem that saying they have an “exclusive” work is out-and-out-fraud.
Then again, logic doesn’t always prevail…
Perhaps MIchaelL could weigh in on this since he is an attorney?
Cheers!
Gael
OK, but lets be perfectly clear, I am a “recovering attorney.” I made my living as a composer for almost two decades before briefly venturing to the dark side. I managed to escape with my life, and I am in process of launching phase II of my composing career.
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First, in my opinion, any company that is concerned with creating and protecting brand identity should HIRE A COMPOSER to write a piece of music specifically for that company and/or product.
If that’s not what they’re after then maybe it doesn’t matter so much. For example, if a company just wants to bolster its image with a certain demographic it may license a recognizable song by a well known artist. Jaguar licensing Desert Rose by Sting comes to mind. Why, you ask? …because the song is exotic and sophisticated, like a Jag, AND Jag buyers are likely to be a bit older, affluent AND Sting fans. I think Volkswagen licensed one or more tracks by Moby — younger, less affluent market. You get the point.
But, to answer the question…I will paraphrase a former leader of the free world: It all depends on what you definition of “exclusive is.” None of us has the contract in front of us, so we do not know the details of what promises were and were not made, what the client understood, and what the client wanted.
The library may have simply agreed to not license that track to another of its clients for the specified time period.
The library may have simply agreed to not license the track to a competitor for the same period of time.
The library may not have warranted that it was the exclusive owner of the track, and could therefore guarantee that the track was not available elsewhere.
Was the overlapping use of the track by competitors, for similar products? If not, maybe it doesn’t matter. Maybe it’s even helpful. For example, a few years back I think that Danny Elfman’s “Breakfast Machine” from “Pee Wee’s Big Adventure” was used simultaneously in a credit card commercial and in the trailer for “Mr. Magorium’s Wonder Emporium” (unless that was a knock-off). Was using the same piece of music harmful? Did it dilute the market for either product? Or (I’m such a cynic) did the trailer for Mr. Magorium put people in the mood to buy toys — for which they would most likely use a credit card?
To answer Gael directly: if the library knowingly represented that it had, and could provide, exclusive rights for that piece of music to its client, when that was not true, its a material misrepresentation of fact. From a practical point, other than the value of the contract, i.e., the license fee, the client would have to prove its damages. To what degree did the client suffer financially because another company licensed the same piece of music to someone else? In the credit card / movie trailer scenario above, there may be no damages. If the client was selling sneakers, it would have to prove 1) that it sold fewer sneakers, and 2) that the sale of fewer sneakers was attributable to the library’s failure to provide exclusivity, and not some other reason, like its sneakers are inferior.
Because the client was only interested in the piece of music for a limited duration, after which it knew (or should have known) that other companies, even competitors, could use the same piece of music, there’s a good chance that branding is not what this track is being used for.
So…as lawyers are fond of saying, “it all depends.”
I’ll throw one more log one the fire. What if it was the composer who was less that truthful?
What if the composer placed the track in “library A” exclusively under one title, and then retitled it themselves and placed it in ” library B.”
Ok –one more log. @ composer, did you hear enough of the track know that it was exactly the same? Or, was it just very similar? Do you know that some libraries knock-off other libraries?
Without all of the facts it’s just conjecture.
OK legal junkies, I’ve got to get back to template building with Logic, VE Pro and Bidule.
Much work to be done
Cheers,
Michael
Makes sense, Michael…
It’s all in the definitions and whose contract says what — as well as whether damages would outweigh court costs, etc. Lots of layers to unfold before full determinations could be made.
Thanks for bringing your expertise out of the deep, dark closet and sharing it with us.
Gael
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[who thinks life and business would be so much easier if people just told the truth
@Gael
The thing with damages is not just whether they would outweigh the court / litigation costs, but whether you can prove your damages.
If the client is going to claim damages to its brand because the track was not licensed exclusively, the must be able to quantify AND prove the damages.
So…first prove that you lost X amount of dollars, which takes forensic accounting (out of the stratosphere expensive), and then prove that the library’s failure to provide an exclusive license was the cause of the loss. If it was only one cause of the loss, then what percentage?
I think that there would be great difficulty proving that the library’s breach caused significant economic harm.
Michael
PS. I’m putting my legal self back in the cage.
Oh Gael, I am sorry to hear about your unfortunate medical experience.
No worries, Nameless… I came through it and am back to kicking butt and naming names… oh, wait… you don’t have one… [jk]