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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
]
[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]
I know this sounds funny, but I do not trust Gael’s business ethics.
The re-titling issue does not bother me very much. It is not that big of a deal. But I did notice in some other posts that she says she lets CDs sit on her desk for over a year before reviewing them. That does not strike me as someone being a professional. Why would it take more than a month for a CD to be reviewed? Also, she spoke about tossing CDs in the trash that were “glossy” and not even wanting to use those CDs as coasters. How cruel is that?
Artists work hard to create music and send it to companies. If a company does not have a use for it, that is fine. But to taunt other people and minimize their work is absurd. Gael may be successful, but that seems to come from crushing people’s dreams and stepping on people’s necks. Why must people in power be so mean? Does it ever occur to people like Gael that they are not the end-all-be-all of the world? I just wish that people would be kinder to one another and not spew so mush insolence and arrogance.
It is sad to see how one person can treat so many others as if they are less than human.
@Nameless: I know Gael personally and I have no problem vouching for her and her ethics. She gives freely to the music community more than anyone I know and is one of the smartest people I’ve ever met. I think you are miss-reading her comments.
And, I might add, she does not hide behind anonymity.
@ Nameless
Whoa — TIME OUT!!!!
I don’t know Gael and sometimes she and I go back and forth on the retitle thing, but questioning someones ethics is not good, unless you have personal experience to back it up.
She is passionate about practices that she believes to be unethical. That IS a good thing whether you agree or not.
She said some things, mostly out of frustration, not ego from some ivory tower, that are hard for some to hear. BUT what she said is true. No matter how hard some people work on a project, no matter how pretty the package is, sometimes it’s just crap (or at least not marketable), and sometimes the person who did it IS just deluding themselves. And when you’re buried in crap every day you get a little cranky about it.
I think you misunderstood her about a CD sitting on her desk for a year. I think she said that a CD sat there for a year, or years, until the right opportunity for the music came along. There’s a big difference.
It sounds like you’re being pretty hard on yourself and assuming that your music is one of the coasters in the can.
As far as crushing peoples’ dreams and stepping on peoples’ necks that is so WAY overblown dramatic. This IS a BUSINESS.
Agreed. I get a bad vibe from nameless.
Thanks Art & Michael,
For Nameless, who questions my ethics…
When I was offered my first job at a music supervision house, I said to the boss that there was one thing that might be a deal breaker, and if it was a problem for him we should part ways before I started. My comment? “I will not lie for you. EVER. I don’t lie to cover my own tush, and I won’t lie to cover yours.” He laughed and said it was “no problem,” but some months later when he asked me to lie about something for him I just gave him a look and reminded him of our conversation. He went to someone else in the office who WOULD lie for him and never made such a request of me again.
I’m a lot of things… sometimes a little TOO honest (although when I am communicating with someone privately specifically about THEIR work, I try to be as diplomatic as possible). Michael nailed it when he used the word “cranky” ’cause sometimes I DO get cranky at all the junk that makes its way into my office. I especially get cranky when folks who want to get into the industry remain willfully ignorant of how it works. There’s a lot of good, free info out there, and so many refuse to avail themselves of it. Sometimes, however, I go WAY overboard to try and give honest, “sandwich” style, constructive criticism (this is good, this is not, this works, that doesn’t, here’s how to fix it). And unless I am specifically hired as a consultant for an in-depth, one-on-one session, that info is given free of charge. I don’t go all Simon Cowell on anyone, even if what I say may not necessarily be the effusive praise the artist/composer is hoping to hear.
I never said I tossed CDs in the garbage without listening, merely that once I HAVE listened, if it doesn’t pass muster, I toss it in the garbage (UNLESS they have included a self-addressed, stamped envelope, and then I return it. I don’t tell ‘em their music sucks, but their package shore wuz purty — I simply let them know what they sent doesn’t fit my needs). It’s not my job to tutor or mentor every artist/composer who sends me unsolicited music. It’s my job to find good music for the projects on which I’m working. I have thousands of CDs in my office. I’m certainly not going to keep the junk hanging around gathering dust.
As Michael rightly noted, I don’t let CDs sit around for a year without review — although I have kept some selected favorites in a special spot waiting for a project in which I CAN use them. Okay… maybe I did let a bunch slide late last year and the first part of this year, but I’d say being in a coma for over a week, spending 6 weeks in the hospital and learning how to walk again gives me a reasonable excuse.
Think about this, too, Nameless… supervisors sometimes get hundreds of unsolicited CDs each month — many more unsolicited emails with “listen to my music” pleas. We cannot listen to everything right away, or even reply quickly to every request because we’re working on our latest project(s). It is why I always say a quick phone call ASKING for permission to send CDs or links is much more courteous and effective. The artists/composers who do their homework, make a call and ask what kind of music I need right NOW, and how I want it delivered to me get first listen. Those whose CDs just show up on the doorstep unannounced may sit in the pile until I have time to take a peek. I don’t have a big staff or unpaid interns to whom I farm out half of my work — including screening submissions — I do it myself (or with my various partners on projects).
Sorry you have an issue with comments that were never directed at YOU, but referencing the glut of material that comes every supervisor’s way… unless, of course, you asked me to review your work and you were displeased with my personal, private response. Then again, since you choose to remain hidden in anonymity, there’s no way to know.
If I didn’t care about the composer community, their rights and their education, I wouldn’t spend time on the phone, answering personal emails and posting on various forums — and making a number of handouts available free of charge. I get calls and emails every day asking for advice on everything from A-Z, including on how to become a music supervisor. I freely give what was freely given to me as I was learning “the biz” (and continues to come my way via other, more erudite colleagues) — information, advice and knowledge.
So feel free to question a lot of things about me — as well as disagree with my opinions — but don’t ever suppose that I don’t care about the artist, the composer or their well-being.
Cheers!
Gael
[who now cannot get "You Ain't Nothin' But a Hound Dog" out of her head... lol]
P.S. for MichaelL… just got back from watching the Penguins lose a squeaker to the Ducks in Anaheim… Hubby & I are driving tomorrow to Phoenix to hopefully see ‘em kick some Coyotes bum.
Play nicely amongst yourselves, and have a great weekend, all!