HERE’S HOW IT WORKS TODAY:

A composer is chosen by an advertising agency, usually after an exhaustive – often nonpaid – demo process to provide the musical score for a TV commercial. The spot, already filmed, has been edited using part of Adele’s latest hit song as a “temp” track (or perhaps a Beatles intro, or a Miles Davis riff) just to show everyone what the mood and feel will be like in the final version. Of course, it’s been understood early on that the client cannot possibly afford the huge license fees necessary to use Adele’s song (i.e. the music publishing rights), or her actual performance (i.e. the separate sync fees to both the artist and the owner of the recording), but the ad agency is confident that its music department will be able to create something even more wonderful for just a fraction of the cost.

When everyone gathers for the music production meeting to provide creative input to the composer, the first words spoken are: “We want something as close to this as possible, but not close enough to get us sued.” The composer dutifully jots down every musical nuance suggested about how to make the track sound-the-same-but-different, and in a few days delivers a recording that is remarkably close to the gem they have all been loving, but, as everyone guardedly agrees (with fingers tightly crossed), is just far enough away from Adele’s hit to avoid any legal hassles. (Whew!)

The composer is then sent the ad agency’s standard music contract containing its standard indemnification clause that warrants that all the work he/she provided to the agency is original and that it does not infringe upon the rights of others – and further, that the composer also agrees to be financially responsible for any damages, including everyone’s legal fees, in the event that there is even an alleged breach of this warranty.

The composer, without a ripple of objection, immediately signs; the spot goes on the air, gets lost in the sound-clutter of our lives, and quickly fades into history, while the agency moves on to invent the next commercial for its very satisfied, and very lucky, client.

HERE’S HOW IT USED TO WORK:

Once upon a time all this legal stuff really didn’t matter a whole lot. Certainly, the advertising music composer was unfairly made to assume a liability that should be shared by the agency copywriter, art director, producer, and all the other agency types who provided creative ideas. But, back in the days when commercials mainly used original music, the rare plagiarism claim would be quickly and quietly disposed of. The ad agency’s attorney would simply contact the claimant’s attorney, a few letters would go back and forth – mere legal exercise – then someone would suggest a dollar amount, and the agency or their insurance company would write a check. Both sides knew from the outset that the sponsor would never tolerate the embarrassment and negative publicity of being accused of stealing someone’s music, so reaching a settlement was a forgone conclusion. And because the agency and the client each carried their own separate insurance policies, no individual from either entity ever had to fork over a cent. Case closed.

HERE’S WHAT CHANGED:

One day, a new generation took over the advertising business, people who had grown up freely sharing music on the Internet (legally or not). To them, original ad music was old fashioned; it was easier and hipper to use borrowed glory (legal or not). Young composers came to believe they could freely lift portions of someone else’s work by claiming that they were paying an homage to that song. Suddenly, the availability of music from so many sources transformed the industry into a minefield of litigation. Now, when ad agency bean-counters were scrutinizing their bottom-line profit, they found that too much of it was going out to pay music settlements. Likewise, their insurance companies began to behave like insurance companies always do: make too many claims and your premium goes up. This new financial exposure required a crafty, well thought-out solution.

And then it appeared, the perfect agency fix: “Why not put the responsibility for our own people’s lack of creativity on to the shoulders of the composers? Everyone knows that composers will sign anything just to get the job. Let’s just add a clause to the agency music contract requiring composers to carry their own plagiarism insurance (of course, at their own considerable expense). And let’s insist that the composers’ insurance comes into effect first, before the agency’s or client’s insurance policies.” It was brilliant! A great way to save a buck and protect those who provided the questionable creative direction that caused the problem in the first place! Bravo! Give that lawyer a key to the executive bathroom!

HERE’S HOW IT SHOULD WORK:

It will be difficult to change the ad agency business mindset. However, with a little courage, here are two very reasonable protections that a composer can add to the music contract that will help make the playing field a bit more level:

1. To the indemnification clause, replace the word “alleged” with the word “proven,” and then add the words: “a proven breach is herein defined as a decision reached by either a judge or jury in a court of jurisdiction, specifically excluding any out-of-court settlements.” This way, if the client’s dog-walker trips while humming the commercial’s music track, the composer won’t be liable until it has been proven in a court of law that it was the fault of the music.
2. Then, insert a short sentence saying: “The entire amount of composer liability shall not exceed the fee paid to the composer under this contract.” This way, in the event a claim goes all the way to the Supreme Court, the composer’s risk will have a limit: the total amount they were paid to do the job. This completely eliminates the need to carry insurance. If someone can prove that the composer is guilty of following orders, they can have their money back. But not more!

Gaining legal respect will not be easy. But it is completely appropriate in today’s litigious business climate for composers to be responsible for what they actually did, and not for what others want to get away with in their names. Composers should not be liable for someone else’s profound lack of imagination.

Steve Karmen has been a Local 802 member since 1953. This essay ©2017 ELSMERE MUSIC, INC. All rights reserved. Used by permission. Nothing in this article should be construed to constitute legal advice in the context of an attorney-client relationship. This article is the sole opinion of the author. Local 802 disclaims liability for the professional advice contained in this article.