[Fmpro] Retitling -- Copyright

Tue Jul 8 22:19:32 GMT 2008

Josh,

In the U.S., you are copyrighting the actual work itself, NOT the title. Just look up the title "Blue" at ASCAP/ACE and you'll see how many songs have that single-word title. It is the underlying composition (melody) and/or words you are copyrighting. Calling a cat a dog doesn't make it a dog.

When a new title is treated as if it were a new composition, giving Publisher A the copyright to "Blue Love," Publisher B getting "Loving You Makes Me Blue," all the while you retain the publishing on the original title of "Loving Blue" -- it seems that the U.S. government is being defrauded to start, because the publishing of ONE piece of intellectual property is being sliced up into percentages that add up to more than 100% of publishing ownership for the COMPOSITION itself, regardless of the title(s) -- and usually the recording of it as well.

A non-exclusive license is a completely different thing -- a totally different concept -- an "apples vs oranges" comparison that doesn't apply here. You are licensing a single song and/or recording of it (ostensibly with its real, legal title) on a non-exclusive basis for use in timed relation to picture according to terms specified in the synchronization and/or master use license agreement. There is no "selling" involved (except "selling" them on the idea to USE your piece in that bar scene), and you are free to license that composition and/or recording of it as many times as you want, to as many folks as who want to use it, and for however much you can get for its use. If it's a song or licensed composition, anyone who checks IMDb in the "soundtrack" area can see the movies & TV shows in which it has been used (assuming you've done your due diligence in reporting its uses there). If someone wants to use that composition/song and/or recording of it on a
 CD, mechanical licenses/rights come into play, but it's still the same composition with the same title.

A traditional music library exists because it collects back-end on an extensive catalogue, not because it receives massive, up-front license fees for its many placements (and rates continue to drop because of how many people can provide cheap, usable music, and "royalty free" libraries that are undercutting everyone, much to the detriment of music's value as a whole). Their ideal situation is to either require that a work be exclusive to them and retain all or part the publishing, or have the composition created as a work-made-for-hire and own the composition's publishing and track outright (because they also pay for the recording costs). They don't want to have to administer a lot of publishing rights for a stable of writers and composers. They don't want to have to administer artist rights for a stable of angsty chick singers or brooding emo guys, so they also do the "artist-for-hire" scenario, where all players & singers are given "side man" status
 and not entitled to any further compensation for their work. I'm not defending the practice, merely stating the "why" of it.

As for reversion clauses... nice idea, but highly impractical, and there's little guarantee that the "reverted" work actually reverts 100%. Why? Large, worldwide libraries have CDs distributed to thousands of clients. Keeping track of reversion clauses on the tens of thousands of songs in a  catalogue is definitely a daunting & time-consuming task. Think of the headache to recall the various compositions when they have been included on library CDs that have been distributed hither and yon. Some editor somewhere is still going to be putting that "reverted" composition into a film, TV program, video game, etc. and some library is going to miss the reversion in the paperwork... and all sorts of legal hassles can ensue. This is one of the reasons libraries tend to like the work-made-for-hire or exclusive deals -- no muss, no fuss. Again... not defending, merely stating the "why." I have one friend who got substantial compensation in such a situation with a
 reverted copyright that was licensed after its reversion back to him (and it was the actual copyright, not a retitled piece).

As a music supervisor I have had production companies ask me about this practice and to make sure that I am providing only "original titles" because they don't want any potential future legal hassles. As a rep for indie artists, I've had music supervisors ask me if the songs are "original titles" and not retitled pieces. Not everyone is comfortable with the practice of retitling and many (usually the biggies) are becoming more and more wary of what they're licensing from whom, since there are neophyte, so-called "libraries" popping up every day, often by people who may be musically creative, but have no idea about the ins and outs of music licensing. 

The practice of retitling has boomed BECAUSE there are so many small libraries popping up -- with little or no track record (no pun intended) of successful placements, and/or without lots of tracks to license. These folks are desperate for music in order to compete with the big guys, which is why they do what they do -- why they encourage the retitling of existing, protected copyrights. Lots of composers are barely scraping by.  Desperation sometimes makes for hasty and/or imprudent decisions, and for uneasy & needy bedfellows.

As the copyright office states [my emphasis]: "...The information in a supplementary registration augments but DOES NOT SUPERSEDE that contained in the earlier registration..."

Also... "...The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights UNDER THE COPYRIGHT 
initially belonging to the author..."

As for a "derivative" copyright? "...You may make a new claim in your work if the changes are SUBSTANTIAL and CREATIVE, something more than just editorial changes or minor changes. This would qualify as a new derivative work..."

Changing a title is neither substantial, nor creative, so by definition, retitled compositions cannot be considered derivative copyrights.

And who could seek legal action? ... A library who has one of your copyrights in their catalogue who is not aware (or claims ignorance) that the title they have is actually being held in several other libraries under other titles. They could claim that the song, as titled in their catalogue, is the "real" copyright, and enjoin you from using that composition and/or composition anywhere else until it's all sorted out in court -- which could be years ... A film company that is being sued by Library A with a recording of the piece in THEIR library that has a different title, but is a note-by-note duplicate of the piece Library B licensed to them.

Until this comes to a head in court (there have been rumblings about it for awhile, so it's simply a matter of time), it's a very grey area, and not one in which I feel is prudent to walk. And when one of the country's leading entertainment & copyright lawyers raises the caution flag about it, it gives me pause (it was an off-the-record comment when interviewed for an industry magazine article, so I cannot quote, as that particular opinion was not for print/publication).

I have a query out to the copyright office on their official stance (if any) regarding the practice as a whole, and will report back when they reply. It can take them awhile, so please be patient. :)

Gael

=================================
Gael MacGregor
Music Supervisor
gaelmacgregor at yahoo.com
=================================
www.imdb.com/name/nm0532320
=================================

--- On Tue, 7/8/08, Josh Silver <josh at repose.mu> wrote:

> From: Josh Silver <josh at repose.mu>
> Subject: Re: [Fmpro] Retitling -- Fraud
> To: gaelmacgregor at yahoo.com
> Date: Tuesday, July 8, 2008, 7:43 AM
>
> Gael,
>
> Fraudulent to whom?
>
> If all parties involved are aware of the situation then who is being  deceived, where is this fraud happening?  Who will be claiming the fraud and seeking legal action?
> 
> I only deal with non-exclusive libraries and when these libraries sell licenses they clearly state that they are selling non-exclusive licenses to their clients. Which clearly means the same songs that are being licensed can be licensed again to others again and/or by different companies. So who would be taking whom to court for fraud? The production companies know that the same songs are circulating and being licensed to other parties, the composer is aware and of course the library is aware.  So where is the misrepresentation, somebody needs to be blatantly deceived in order for this to be fraud right?
> 
> Who might this be and who will be suing whom? If the production companies know that the music is out there being licensed by others do  you really think they care what the titles are?  The PROs don't seem to mind either.
> 
> I've talked to my lawyer about this and my PRO and both have agreed that they don't see any problem in me pursuing libraries of these kinds, my lawyer simply advised me to make sure they are non-exclusive and that I have an option to terminate the contract after the term is up which of course this is a no brainer for me.
> 
> So with all due respect I'm still not seeing the downside or the "fraud" to the re-titling libraries, I see it as a new opportunity and a new option for composers to get their music circulating and still keep their copyright and control of their music.
> 
> josh