AUTHOR'S NOTE: I first posted this on 06 June 2012... but it disappeared when we had to redo the website from scratch due to some hacking issues. I still feel the same about re-titling [no surprise to those who know me].
I am constantly being barraged with the question “What’s so wrong with re-titling?” and statements such as, “It’s only assigning a revenue stream to whoever is making the placement—just like a publishing administration fee paid.”
Those are issues to be addressed in different articles, but here's what happened to a pretty big U.S. library that went out of business based on the re-titling of ONE song.
[Authors Note: How do I know this is true? A long-time colleague worked at the referenced company during the decision-making process and subsequent brouhaha, and despite this person’s attempts to keep the powers-that-be from becoming victims of their own greed, they moved forward (as it turned out, with disastrous results).]
Here is what happened:
A decent-sized library, with a couple of a million dollars of investor backing, was repping songs from a late-'90s/early-2000s punk band and re-titled them all (among thousands of other works from many artists/composers, all of which were also re-titled so the library could take the “revenue streams” from the publishing end of the “titles”).
Said compositions and recordings (actually “titles” and accompanying masters given the same re-title) were being pitched for worldwide film, TV and advertising use. One of this band’s songs, under its original title/recording/label, started getting a lot of airplay around the world—especially in Asia. The head honchos at said library decided they wanted a piece of the pie beyond master use & synchronization licenses (plus their back-end for the re-titled work). They felt they could capitalize on the popularity of the song by releasing their re-titled track for radio airplay in Japan, and felt fully justified that it was within the scope of their agreement they had with the band. Keep in mind that the song, released by the record label under its original title (and utilizing the same master the library was repping), was already playing on the radio in the same country!
No surprise, then, that the copyright holder/publisher and label went all Rambo on 'em, and sued big time. Seems that it is illegal to play re-titled works on the radio in Japan. Who knew? (outside of Japan, I mean)... Not having read all the copyright statutes of every country, I cannot say how many other countries have the same, or similar laws, although I know that some of the nations just beginning to draft copyright laws are pushing for re-titling to be illegal in their respective countries, as I spoke to a number of those helping to draft their country's copyright laws during the World Copyright Summit in Washington, D.C. Non-U.S. folks are almost uniformly appalled at the mere idea of re-titling and cannot understand why U.S. law would allow such a thing to exist. Their take? “One work, one title. Anything else is unethical.” Who am I to disagree, eh?
Anyway... back to the library...
Needless to say, despite all their financial backing, the hundreds of thousands of dollars assessed in fines to the library wiped them out. They weren't able to recover financially and went out of business—all because they released ONE re-titled song for radio airplay in ONE country.
Now, here’s the scariest part for composers...
The artists/composers also bore a certain amount of responsibility for allowing the re-titled work to be played under its new title on Japanese radio, as they had given the library the right to exploit that new title (including the master embodying the re-titled work) in "any and all media, now known or hereafter devised" with no exclusions.
How the artists/composers eventually worked all that out with the library, I cannot say. The company hadn’t listened to my colleague’s warnings prior to their decision, and my colleague didn’t want to be a part of the inevitable aftermath after the warnings weren’t heeded, so beat a hasty retreat.
So... how many of you who re-title your works have a clause in your contract with the various libraries that have a radio airplay exclusion to protect yourself from the possibility of such a scenario? Most of the time you have no idea what has happened with your tracks until you get your quarterly statement from your PRO. How do you know whether your music is being played on terrestrial, Internet or in-house radio, and what legal implications that could have for you?
Despite its supposed "industry norm" (which it really isn't, since one of the Production Music Association's stated "core values" is: "The PMA opposes the practice of re-titling when used in conjunction with non-exclusive representation"), in such discussions I fall back on what the Lead Counsel of the U.S. Copyright Office in D.C. told me in 2009: that the practice is "unethical at best" and when/if it is tested in court, those who participate in the practice could be at risk of losing their actual copyrights if the case goes against the proponents of re-titling. Yeah, it may be a long time before a case is taken to court in the U.S., and who knows? The decision could possibly fall on the side of the libraries (anything’s possible)... but I can't say I'm willing to put MY copyrights at risk just to make a few extra bucks from a re-titling library.
So think carefully about how you decide to exploit your works and how much of a risk you want to take with your intellectual property.
And a reminder (from my attorney): All statements above are my opinions and not intended as legal advice or counsel. No warranty or representation is made as to the accuracy of these statements. You should hire an attorney before entering into any agreement or contract. So there!