JPF Home Page Forums General Messages Mentor Questions Forum Unlicensed use of my song in NBC "Crossing Jordan" DVD release

Hi all,
Hope you can help. I'm a little experienced with media placement and licensing but I am at a loss. I have discovered that one of my songs has been used as replacement music in the DVD release of "Crossing Jordan," which was an NBC primetime drama. Specifically, my song "Admit It" replaced one by Alanis Morisette in episode "The Gift of Life" from Season One.
I said I'm a little experienced, with a few TV and film placements and a 2-song publishing deal ... enough to know that I did not knowingly authorize the use and distribution of this song to anyone for this use. I also know that I have not received a big fat licensing fee or royalty check :)
The song is my copyright and I receive 200% of publishing (no publisher) and I am the featured performer. I am registered with BMI and Soundexchange.
If you need more info, as away, but basically I need to know if:
1. I should get a lawyer
2. I can handle this myself
... what should I do to pursue and recover licensing fee and royalties?
Many thanks in advance,
Patti

Hi Patti,
Wow, I would consult an atty. at the very least. Doing so as soon as possible as well. You may, in fact, be able to handle it yourself, but a consultation wouldn't hurt, imo.

Get a lawyer asap. You sit in a good position to get more money because it's happening after the fact. But get a lawyer! I'm sure Brian can recommend a good one. Or you can PM me and I can recommend one to you.

Hi Patti,
Look in your phone book and make an appointment with a local lawyer. If they can't represent you they can refer you to a lawyer who can, most likely in your state. A lawyer is the only way to get this straightened out. It may be as simple as a lawyer writing a letter to the offending party. Could be someone didn't know how to get a license.

HI PATTI
while you are rightfully upset about this-you and a select entertainment lawyer will soon be doing cartwheels-him sooner than you cause it was NBC and lawyers live for fat cat meals like that.....my guess is that with such a slam dunk case they will pay off fast........one of my co writers is a composer in the nyc area who does alot of film and tv scores.....i will ask him to give me a name of a good bulldog entertainment lawyer and see who he reccomends.....you are of course free to go with whoever you choose from wherever.....but i would think he would know someone.......i will check for you and get back to you when he tells me......the check you get from nbc will be bigger than the royalty check you initially deserved...even with the lawyers fee considered.....

Tom

Richard Shindell heard his song "THe Ballad of Mary Magdalene" on an ABC special that aired during all of the hype for The Da Vinci Code. Shindell called his agent to find out what kind of money he was going to see from it. It turns out that if they use less than thirty seconds of a song, no royalties are owed. In this case, they used 29 seconds of the song.

Patti, yes, you should contact a lawyer ASAP. PM Jody and/or Brian. You want a good one with entertainment experience. Also, ask your lawyer if and/or when you should contact your PRO. I'm not a lawyer, but if it were me, I'd consult with one to see if getting my PRO involved would constitute some form of implied permission.

Hey Patti,

Where did they get the material from. From one of your CD's ? Sounds like a big lapse of judgement on the part of the producers. Usually, release forms are flying all over the place.

Never mind, isn't infringement of copyright a 15k fine per offence, regardless of wether it was done intentionally or not ? I'm sure you'll be able to work out a negociated settlement.
Happy payday.

cheers, niteshift

Hi Patti,
The following link is what appears to be a review of the season 1 box set release. The Audio and Summary sections of the review contain small but interesting bits of information regarding the music. Apparently the box set includes a "featurette" within which music licensing efforts for the DVD are discussed.
You may have this info already in hand, but I thought I'd pass it along anyway...

Well...I can't get the link to work, but the site is... TVshowsonDVD.com


Best of luck with your investigation,
GJ

heres a link for a LA entertainment lawyer

since the matter obviously involves the hollywood branch of nbc anyway.....check this guy out.......looks pretty cool......good luck Patti


http://www.corberlaw.com/


Tom

I can't endorse Brian Lee Corber, plus you might need someone who practices in your state of NY (though I am not sure and that's all the more reason you need to make inquiries). Stuart Shapiro on this board is in NY (Buffalo) and might be a good resource to determine what you need to do going forward. You'll obviously first need to determine if you've ever posted your music on a site that licenses music because you might, by simply posting there, have given licensing permission. People are so free and lose these days with posting music various places that they rarely understand what they are giving up. So you need to know exactly where you've ever posted your music and if that implied or gave permission to license your music somewhere.

Also consider that rattling sabres isn't always the best tactic. You can also find success by being reasonable and coorporative even if a mistake was made. It's not always best to try and cash in on what might only be a few thousand dollars by throwing a fit.. sometimes you can leverage it into a longer relationship that could produce more opportunities in exchange for your cooperation with them if they screwed up. (And by being reasonable, you'll also learn if you somehow made a mistake somewhere and gave up rights without understanding what you did). But.. one thing is clear, you need an attorney that can advise you. It doesn't mean spending thousands of dollars (which might be more than a fee would cover anyway) but simply getting sound basic advice on what options you have. That might well cost a consulting fee, but would likely be worth it at this point. And remember, that whatever happens, you can learn a great deal that will serve you well going forward.

I'll send you Stuart's email address via a Private Message.

Brian

I'm with Brian on not rattling sabres straight away on this one. I mean, I know it is part of american culture to sue people and companies at any opportunity (and the culture is sadly widespreading to Europe now), but in this case, I don't think it would do much good for your career.

Think of this as an networking opportunity. Assuming that you didn't somehow grant them a license without your conscious knowledge, someone at NBC or at the production company they use has messed up big time.

Find out who's in charge of music, contact them, ask for acknowledgement and the royalties that you should get, and establish a conversation going with them. In other words, treat them like people, not like monsters.

When the musical director recieves your next CD, he will recognise the name and he will be more willing to open it. Make sure that during your proceedings, you discuss with him what kind of projects he's got coming up and what kind of music he's after, and you can send him a CD with appropriate songs and you stand in with a big change to get further TV placements.

To me, it seems like the sensible thing to do to get some long-term benefit from this situation.

I agree with Nat and would just call them and ask them before calling a lawyer....

Jody, Brian and all,

Thanks for all the advice. I have contacted my manager (he's in Berlin at PopKom) and asked for a referral to a suitable entertainment lawyer. I also found the same background info that was offered by GJ (Google is amazing).

I don't know where the producers found my music (CD, download, music library, etc.). All the tracks I have put out out there include the encoded ISRC data but maybe that's not what they found. It does sound very unlikely that, if I am owed $, the DVD producers at that level would make no attempt to find the me.

But I am definitely not girding myself for war or a big baby fit of self-righteous indignation. It may be the case that they found the track at one of the handful of libraries and licensing sites where I have submitted music. I know that one or two allow free downloads but I would be surprised and bummed to discover that download implies licensed *use*. To my knowledge they are all based on standard 50/50 publishing and a negotiated license fee.

I'm prepared to be disillusioned but hey, it's cool, right? My song in a scene where the lead character is OD-ing. I like it!

And in the meantime I will definitely consult a lawyer. I realize it could be I've made a learning mistake and I won't see a dime. But if that's the case I will take the advice to leverage this episode into something more profitable.

Thanks so much for your feedback! I will keep you posted (that's a pun).

Patti

Like Brian said, be sure that they didn't get it legally from a licensing firm before making a fuss. It happened to me, that a firm I had registered some songs with, licensed a song to a TV program and failed to tell me. I only found out about it when performance royalties started showing up on my PRO statements. They also "forgot" to pay me my share of the license fee. I finally got it after a long time.

I ran into a situation like this earlier this year. In April or May, a fan told me my music had been used in the DVD release of a very popular UK TV drama. However, I had not been notified of the use by anyone else. PumpAudio (where I have some of my music) claims that they did send music to that company, but didn't know whether mine was sent or whether it was actually used. To date I haven't received any sort of statement about that usage nor any sort of paycheck.

It was Pump Audio that placed my song, if I didn't get airplay royalties( which alerted me that something was happening with this song that I was not aware of) and get my PRO (SOCAN) checking into it, I wonder if I'd have ever received my share of the license fees. As it was, I was a long time getting it after I contacted them, they said it was an oversight. I've never sent them any songs since. It might have been an honest mistake, but it makes you wonder.

Hi Patti:

I think Natalie and Colin have a reasonable approach to this problem. It won't hurt to ask an opinion from a music attorney (provided it's a free consultation) but there may be a simple answer or lack of communication involved. As my "Sainted Grannie" used to say, "A soft answer turneth away wrath!" Often, when folks are approached with the calm voice of reason, they will do the right thing.

Kevin Rose brings up an interesting situation in his post. I'd never heard of that and would like to explore the legal firmness of the "less than 30 seconds deal" a little further.

Thanks to everyone for input into this interesting thread... and especially to you, Patti... for sharing this with us. As fellow songwriters, artists and musicians, we learn alot from these situations.

Good luck, Patti. We are behind you in hoping for a satisfactory and fair conclusion.

Best,

Dave

http://www.showcaseyourmusic.com/DaveRice

That's not the only time I've heard of that problem Everett, so it makes me wonder as well.

Brian

Besides the good lawyer advice, congrats for having music wanted for a TV show, and for any future rewards!

John

Very interesting.

Update:

I decided to send a message to the legal department of Universal Studios (the producers) through their corporate website. I was not able to find any other method of contacting a licensing and clearances department at Universal.

I explained the circumstances, saying I was puzzled how the song was obtained without a license; that I was not notified by a music library or other entities representing my music, and that it's possible Universal made an attempt to contact me without success. I asked to have someone contact me so I could discuss the matter further with Universal. I gave my direct contact info.

I hope someone will contact me -- depending on the reply I'll pass their contact info on to whatever attorney I retain.

Have a good weekend!

Ugh, just got an email "Failure Notice" saying the message did not go through. Any suggestions on how to get contact info for Universal Studios TV-to-DVD production staff?

heres the info u need Patti

click this link

http://www.insidebrandedentertainme...vnu_content_id=1003020793&&imw=Y

good luck

Tom

I will say this one more time. Get your information together and make an appointment with a local lawyer. A local lawyer can refer you to someone that can represent you. After you get the name of a lawyer that will represent you, you will either have to write him or call if he is out of town.

By the way, I am not sure I believe the post about not having to pay any royalities if a clip is less than 30 seconds. Let a lawyer who is equipped to handle these things take care of it.

OK, I have contacted my entertainment atty to talk this over and create a plan. I have a couple of music pals on the west coast trying to get a name of someone to contact at nbc/universal but I'll let an attorney rep me and not try to contact them myself. I do appreciate the help you all have offered here. Thanks again.
Patti

I agree absolutely that a lawyer should be consulted. I was just relaying a story that seemed to be related, although the "30 second" length may not be accurate. I heard Shindell tell the story a year or so ago during a concert at the Canal Street Tavern in Dayton, OH. This clip is him telling the story at another concert: http://www.youtube.com/watch?v=HGpYFLIhDio

Just fyi in the DVD the song plays for 00:01:63 (artfully edited down from about 04:00) so the 30 second limit doesn't apply (if true). With all due respect I'm sure Richard Shindell was employing hyperbole, a birthright of artists and entertainers.

I have gathered my paperwork: Copyright Registration, BMI catalog registration (my CAE/IPI number and the song's work # and ISWC I.D.) to bring to my lawyer with a copy of my CD and the DVD.

Thanks for the link to Branded Entertainment. That was the info I was looking for.

Aside from the legal issues, I will tell you it is a bit of a thrill to hear the music matched to the drama. Not life-changing or anything, just cool. And I'll admit it's fun to fantasize about how I will spend the money. Home improvements are my favorite fantasies

Regards,
Patti

Hey Patti,

1) Cue sheets are posted regardless of time length.

2) Master track ( sync clearance ) is required, both for TV and DVD release.

3) Someone appears to have screwed up. Or have they ? Double check where you have placed this track with music libraries etc.

4) It is exceptionally rare for such an occurance to happen. There is too much money involved, and too many production assistants.

5) Von ( ONOFFON ) may be able to help you. He's from around that way, but don't know what his contacts are with Universal.
von@onoffon.com PM him.

6) Time to take this off line. Business should be conducted in private. ( Although, let us know the outcome ! )

cheers, niteshift

Patti,
I'm glad that you've contacted an atty. Good move on your part, even if they are willing to pay without any of the issues some encounter, you are much better of with representation.

Epilogue:

Unfortunately, in my excitement to solve the mystery and in my mistaken belief that this could lead to some real cash, I spoke with a lawyer just hours before I heard back from one of the music libraries I contracted with in 2006. I honestly did not believe this company was the source of the track. But it turned out my song was properly licensed through them by a 3rd party agent, about a year ago. This agency took 50% of the license fee off the top and then was tardy in notifying the music library, and me.

The bad news is, I received no credit in the DVD at all. This is the worst part. Even if someone watching the DVD loved my song they would have no way of tracking it back to me. I just assumed this would be done but truth is it's not in the terms of my contract with the music library. Obviously I had no knowledge of the transaction and thus no input into the terms of this license to NBC/Universal.

To compound the loss, the remainder of the fee was split 50-50 with the music library I contracted with, so my share was about equal to what I ended up owing the lawyer.

If there is anything positive in this story, it's that the lawyer took 30 CDs in trade. And my song will be heard, whether anyone knows who I am or not. It's up to me to capitalize on the placement in any way I can -- post to fan sites, promote, etc. No one is going to do it for me. You can be sure I'll try to (re)negotiate all contracts and insist on credit, at the very least, in any use of my music. And there are still royalties to look forward to

Live and learn, if not earn.

It's too bad that these firms placing this music are so slow paying the owner of the music. Maybe they are hoping that you never find out that the music was licensed and never come looking for your share, that way they keep 100% of the fee. I only found out about mine when royalties started coming in, about 18 months after it was aired. I must confess, it made me a little suspicious of these firms. How do we know how many times they license our music and we never receive our share?

That sucks Patti, sorry ! ! You'll have to pay income tax on that money too ! !

You should name names. Nothing pisses me off more than sleazy licensing companies who do not IMMEDIATELY notify someone when a placement is happening. If you hadn't heard about this, they would have kept your money.

In addition, this is a tough lesson that MANY people need to learn. Perhaps we should do an article about it. So many people put their music up on sites and forget about it but when you enter an agreement, they never forget and it can easily come back to haunt you in all sorts of ways. Very sad.

Brian

Hi All,
I would require a clause in the contract that all sales be reported as to who licensed the music for what, etc. It pays to read all contracts carefully and be sure you are happy with the agreement. Also what splits of royalities you will agree to. If you don't have a limit of how far a track can be split you could end up with practically nothing with others in the chain taking most of the license fee.

If you have agreed to a 50/50 split you should not see that fee split several times and finally you only receive a whole lot less.

Sorry to hear that. Yes, I'm with Brian, it would be useful to actually name the music library and agency involved, if only to warn people using that music library already.

As for not being credited, I hope that the title of the song is obvious when you listen to it? In which case, some people could find it if they Google it

I'm guessing you're going to mention on your website that your song is on the DVD, so that your website does show up if people do a search.

To ensure your site shows up if people do a search on the soundtrack of the DVD (either looking for your song specifically or for another song in it), I'd do the following to help with SEo: I'd mention the title of the song obviously but also include any line that could be mistaken for the title (so if people think it's the title, it will show up), the name of the show, the details of the DVD release, and the main actors/actresses in the show.

I would also find out which other artists have their songs featured on the DVD and include a link to them - not a link from your links page (if you have any) but from the page(s) in which you mention your song is on the DVD. Then, I would go to these artits' page and leave a comment. Many artists have their websites set up as a blog now and you can leave comments, or you can leave a comment on their MySpace page (after you've become their friends).

It would be helpful if you mention this on at least 2 pages of your website (perhaps on a news page and on a music page?).

I suggest you do not write about your experience on the same page you would use to mention your song is on the DVD - you don't want to come across as complaining about the music business to potential fans.

I'm sure you'll gain a few more fans from this

In my case the contract says 50-50 split of "net fees." There's the catch. It doesn't require the company to report when/where/who or how much. No splits of royalties. This company told me the third party is one of their best sources for network TV placements and they are "usually" prompt about notification but for unknown reasons this one was not reported. They didn't say who this 3rd party is. I have asked about the lack of credit to me, whether it was typical or an oversight... I'm waiting for reply.

Since I am still talking to this company I will not be naming names. In future I will sign contracts that give me a yes-or-no authority, that tell me who/what and when, and that me give me appropriate credit. For me there is also the "morality" issue, I forget the proper name, where some contexts are excluded (tobacco, porn, etc).

If you're like me you may feel as an "unknown" you have no bargaining power -- that's true but you owe it to yourself not to give in. The who-what-when and credit are bottom line issues for me now, always. I would recommend to anyone considering signing agreements with music licensing companies: Ask about third party agents, about credit, about notification, etc.

Have a good Monday!

patti, may the winds of bad karma blow right back in their direction. sorry to hear you've basically been taken advantage of. keep plugging away, you've turned a light bulb on for alot of us...be well,moker

Well the nature of libraries is that they can't go to you for a yes/no answer. Their entire value is that they have pre-cleared music available for a price. Without that power, the library is useless. My problem with them is that they didn't IMMEDIATELY report it you and list what it was and how much money was involved. Had you not tracked them down, you weren't going to get a penny. That's sleazy and unacceptable and I don't accept it was a one time error. These places are NOTORIOUS for not paying the artists unless you beat down their virtual door to get it. If you aren't 100% satisfied at the end of this, you should name names. Otherwise they will live to scam another artist another day AND their current clients need to double check to see if they have gotten paid for placements they may not even know about.

Brian

Thanks Brian - yes, that's true about pre-cleared. But what about credit? Is that something libraries are typically open to?

Patti,

It's a difficult issue. Sometimes the people who need the music specifically don't want to credit who it is. Often there shows use big name music when it's broadcast, but use unknown indie artists on the DVD releases because it saves they HUGE money. The most famous case of this is Norther Exposure. They couldn't even release the show with the music because it was going to cost 100's of dollars per season for the licensing. So they replaced nearly all the music with library content. Many people say it ruins the vibe of the show. But the producers do not want to call attention to the fact that their DVD release is done on the cheap as people might not buy in hopes later the original versions will come out. There's also the case that they don't have text room to list all the artists involved (which is always an issue). They use whatever "liner" notes space they have on other things. They also don't want to spend the money to create new titles in the episodes. (I don't know if they run the originals as they were or cut out the music mentioned or whatever exactly).

These are things that are likely spelled out in the contract. Unless you're promised something in writing, you'll need to assume you're not getting squat.

Brian

Hi All,
The Term Net fee throws me. If Patti has a 50/50 agreement with the Library she signed with but the Library assigns that music to a third Agency and they take a 50/50 split then what should be 50 percent may become 25 percent or even less if the music gets re-assigned again.

If the contract allows the Agency/Library to Re-assign the music I would try to require that the Artist Fees not be split beyond the Original Contract. That way the Library could split their portion of the fees any way they see fit but cannot split the Artist fees beyond the Original Contract.

There also should be a clause in the contract allowing a CPA to Audit the books on a regular basis by the Artist if required.

There also should be some agreement that any royalities be paid either quartely or semi-annualy. I assume this is in the agreement. As far as a Credit Line, that may or may not be feasable. But you can ask if the agreement expires and you sign another agreement.

Patti,

I'm a little late to the discussion and don't really have anything to add.

But...I've visited your website and thought you should know that it doesn't work properly with my Firefox browser in either Windows or Mac nor does it work with my Mac's Safari browser. Windows Internet Explorer is the only one that seems to operate properly.

That 50/50 is only on the actual amount the library receives. Most film music libraries/ publishers have third party clauses in their contracts.

As far as credit goes; my music is only credited with the company's name, e.g., music credits: "Dark Passages" - Transition Music. That's just the nature of the beast.

It's no big deal to me as long as I get paid.

Patti,

I can imagine how frustrating this is to you. I hope you get this straightened out very soon. It's a shame that the people that create the product are the people last in line to get paid - and then you have to fight for it to boot.

BTW Patti, congratulations. That's quite an accomplishment.

Best, John