WAVE OF MUSIC INFRINGEMENT CLAIMS IN COMMERCIALS CAUSING LEGAL NIGHTMARES AND POSSIBLY COSTING ADVERTISING INDUSTRY MILLIONS
Forensic Musicologists indicate "temp tracks" source of trouble
New York, NY Responding to rising alarm in the advertising industry over the
increase in infringement claims by record labels and publishers against music
in commercials, the Association of Music Producers (AMP) has conducted a qualitative
poll of musicologists around the country in an effort to pinpoint the cause.
(While it is impossible to quantify due to the "confidential nature"
of the matter, many ad agency music producers assert that the number of claims
has increased by a double-digit percentage in just the past three years.)
From a cost standpoint, the problem is exacerbated by the fact that many claims
are settled with the plaintiffs before ever reaching a courtroom. Dr. Earl Spielman,
one of the country’s leading forensic musicologists, asserts that the
tendency now is for the complaint to be "settled out of court almost immediately"
to avoid embarrassment for both the advertising agency and advertiser.
Tempting fate with the "temp track"
Dr. Spielman also notes that "Of the 50 most recent complaints I have worked
on in the ad world, virtually all have involved a temp track circulated between
editors, ad agencies and their clients." (By "temp track", Dr.
Spielman is referring to a copyrighted composition or song that has been used
ostensibly without permission from the publisher for the purpose of editing
and "presenting" a commercial to the client. This track, if it is
not actually licensed for use in the commercial, frequently becomes the "guide"
for the musical direction given to the composer.) Musicologist Matthew Harris
reports that a majority of tracks he has cleared had a reference track. "Of
those, about 1 out of 3 were never approved for broadcast, even if revisions
were made." And when he entered into a situation in which a claim had been
made against a composition, "…many had used the plaintiff’s
song as the reference track."
Musicologist Anthony Ricigliano confirms this view, adding that "The biggest
problem occurs as soon as an overture has been made to the publisher" with
regard to licensing the temp music. In those instances, both publisher and record
label are "on the lookout for anything even remotely resembling their music
in the final commercial."
The experience of New York-based musicologist, Sandy Wilbur, corroborates each
of these observations. Wilbur notes also that an environment of increased "confusion
of ownership rights and where they overlap has contributed to the aggressiveness
of lawyers and copyright holders wishing to protect their assets." This
means that, in addition to the copyright of the song itself, "Other elements
which could lead to a claim include the copying of a copyrighted arrangement,
or the use of sound-alikes."
Insurance against the uninsurable
Industry insurers have become increasingly wary of offering "protection"
in the area of music copyright (otherwise known as errors & omissions insurance)
given the dramatic increase in claims. At a time when record labels and music
publishers are seeing six and seven-figure deals being offered by advertisers
for the use of songs and tracks in commercials, "crossing the line"
with sound-alike tracks, and the use of temp tracks,
can literally be an invitation for a claim. Scott Taylor, of Taylor & Taylor,
a leading production industry insurance agency, has cautioned that "the
risk and the liabilities could spread beyond the music house-agency-advertiser
chain"-that plaintiffs may seek settlement from whomever is connected to
the process. Notes attorney Robert Sacks of Kane Kessler, law firm of the Association
of Independent Commercial Producers (AICP) and AMP, "It's premature for
the Music Producer to agree to indemnification until it and its client resolve
which parties in the creative and production process should be responsible for
potential claims."
Addressing the problem: Seminar Planned
The Association of Music Producers is planning a series of seminars—the
first to be held in New York City on October 29, 2002—to help address
these matters in panel discussions headed by several professional musicologists.
Speakers will include musicologists Earl Spielman, Tony Ricigliano, Sandi Wilbur
and Matthew Harris; attorneys & intellectual property specialists Robert
Sacks and Adam Cohen of Kane Kessler, P.C.; and Insurance expert Scott Taylor
of Taylor & Taylor Insurance. The NYC program will begin at 9 a.m. at the
Ney Center at Young & Rubicam, 285 Madison Ave., btw. 40th & 41st. Reservations
are required. Call Chris Allen at AICP/AMP headquarters: 212-924-4100.
Contact:
Eric Eddy
double E communications
212-941-7590
email: eric@doubleecomms.com
or Renee Paley
AICP/AMP
212-929-3000
email: reneep@aicp.com