Wave of Music Infringement Claims in Commercials Causing Legal Nightmares


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.

Eric Eddy
double E communications
email: eric@doubleecomms.com

or Renee Paley
email: reneep@aicp.com