April 30, 2020 Latest News No Comments

Ford Motor Company stands accused of using library music in its promotional videos without obtaining a sync license, fifty-four times.

How do we get to such a specific amount as $8.1 million? I’m not a lawyer, I’m a forensic musicologist, there’s a disclaimer around here somewhere, but I think it goes like this…

First, when one is accused of infringing fifty-four times and also of being aware of the infringement, they may be seen as “willfully” infringing, which is like “extra infringy infringing.”

“Hey Google, what is fifty-four x $150,000?” (150k is I think — again, not a lawyer — the upper limit of the range of statutory damages which some actual lawyers might say would be mostly reserved as extravagant punishment for the most “willful” infringements). Google home says, “the answer is eight million one hundred thousand.”

Freeplay Music is the plaintiff, and Freeplay is a production music library that licenses music for use in creative productions like promotional videos, tv commercials, podcasts, and such and was founded by composer, Scott Schreer in 2001. What I wouldn’t give to think I’ll be listening to his “NFL On Fox” theme music this fall after Covid-19 has waned, and pro football resumes; might be the best of the NFL broadcast themes. You know the one…

And he’s written lots of other great stuff.

So was Ford, as the complaint argues, “too cheap to secure licensing?”

Maybe, but Ford typically makes 150 billion a year, as you can see here on Macrotrends.com. And Ford’s annual advertising budget? That’s around 2.5 billion dollars according to the site Autonews.com. So, they skipped out on 13k for the licenses, flouting the rules and risking a big lawsuit? 13k sounds like a modest budget for any one of the productions themselves. Who makes that judgment call? Let’s imagine something simpler.

How might this have happened?

Consider this hypothetical: Suppose someone on Ford’s advertising production team, maybe someone at an agency, or maybe a freelance video editor, might have downloaded a bunch of tracks from Freeplay’s site. She placed them in the online cart and selected one of the several no-fee licenses, like the one for US TV broadcasts or for personal use. She hasn’t actually used them yet. She produces the ads, which get broadcast or put on YouTube, and she and everyone else involved somehow neglected to return to Freeplay and secure the proper licenses associated with advertising, which by the way appears to be only $250-500 per ad, depending upon if it’s going up on the web or onto broadcast tv.

That sort of thing happens. I’ve seen it.

Also interesting and relevant perhaps is how Freeplay conducts business. The company is so named, presumably because it charges nothing for certain uses — personal videos on YouTube are free and TV shows (in the US at least) for the most part can license their music for free. Why would they charge no fee? Because they want the “performance royalties.” I’ll explain. On both YouTube and on broadcast TV, when a song plays, that song’s publishers are paid a royalty by YouTube or by the tv station. If you’ve ever heard of ASCAP or BMI, those are collecting agencies that collect and distribute the performance royalties to the publishers.

Production libraries realized many years ago that the ever-increasing overabundance of library music was going to drive the price of sync fees lower and lower. So, they rationally set prices to zero and hoped for placements on TV that would pay royalties. Now let’s consider another aspect of how these libraries often work. By the way, I run one. We provide an online marketplace for the collected works of many composers, (Freeplay Music boasts over 400.) and in exchange, we take a portion of the sync fee if there is one, and any future stream of royalties. Composers, meanwhile, generally make similar arrangements with several other libraries, as they try to maximize their exposure, sales, and royalties. We call these relationships “non-exclusive,” where the composer might be involved with multiple libraries, and each song may even be licensable from multiple libraries! A song might be called “Broken Heart” in one library, and “Sad and Lonely” in another, so that when it gets placed, ASCAP sends the royalty to the right library owner. That’s called “re-titling.”

And from there, all kinds of questions run through my head. Were these songs exclusive to Freeplay Music? Could Ford have licensed them elsewhere? Did they? Are the individual composers suing too? How did Freeplay learn of the infringements?

Check THIS out. I know a good answer to that last one. How’d they find out? Scott Schreer also, it so happens, founded another company, that finds out. TuneSat is a very popular service used by the kinds of composers that stock Freeplay and Sonitarium’s shelves. When a song plays on broadcast TV, composers are reliant upon broadcasters to report the usage of their music to the collection agencies like ASCAP so that they can pay the royalties to the proper ends. But often, the broadcasters forget or otherwise fail to fill out and submit the “cue sheets.” So, TuneSat offers a subscription service that in effect listens for your music across all the tv stations, 24/7, and reports back, so a composer can make sure he gets paid for that late-night rebroadcast of Pawn Stars that uses his track.

Imagine by the way if your actual business plan was secretly rooted in the HOPE that someone (preferably someone with deep pockets) might, innocently or not, use your music without the proper license, and infringe up a storm with it. TuneSat will find out for you, and you can sue them into oblivion, or bully them into a big settlement. There’s a name for that.

No, this isn’t that.

But it’s been suggested before. Freeplay sued another car company pretty recently, and that company argued that Freeplay Music and TuneSat together were “copyright trolls.” You can read about that case here but let me save you the time. The court rejected this idea, strongly. “Trolls,” are very much in the business of being trolls. Freeplay Music has licensed MILLIONS of tracks over 20 years; that’s their business. Also, blaming the accuser is a lousy approach to truth-finding. Most of all, everyone is entitled to protect their copyrights.

I do wonder about some of those other questions though. I’m looking forward to seeing how this develops.

Written by Brian McBrearty