Anyone with experience of video production should be aware that it’s essential to check music clearance carefully before publishing your film. But what happens when clearance slips through the net?
We looked at a recent legal case in the High Court where mistakes were made in communication between a client and a production company. The case that followed must have been a nightmare for client and producer alike, and ultimately cost £63,750 in fines, plus additional legal costs.
The full legal judgement is here. To save you time, we’ve pulled out the main points and outlined how to avoid the same fate.
Back to the 80s
Tour operator Cruiseco commissioned a video to promote a “Back to the 80s” cruise, produced by an Australian business called Aloha Media for Artists Network Australia (ANA). Tony Hadley, former Spandau Ballet singer, was booked for the cruise. The video featured clips from Spandau Ballet’s ‘Gold’ and ‘True’ songs without permission. In June 2017 the final edit was published on Cruiseco’s websites and sent to travel agents, who were encouraged to share it.
Having been contacted by the publisher of the tracks, Cruiseco removed the video from their website after four days and told travel agents not to use it. But they left the video on the filesharing platform for travel agents for a year, only removing it two days before trial.
At the trial, Cruiseco and their Australian parent company Discovery Travel Centre accepted they had infringed copyright. The question for the court was what damages should apply. Ultimately, the court awarded the claimant £38,750 in ordinary (licence fee) damages and, due to the flagrancy of the infringement and the benefit accruing to the defendant, £25,000 in additional damages.
Does your production process comply with the GDPR?
How did it happen?
It seems from the court documents that there were many people and companies involved in approving the video.
Apart from Cruiseco, Discovery Travel Centre, ANA and Aloha Media, Tony Hadley’s management company Blueprint Management had input. At the time Tony Hadley was conducting a legal dispute with other members of Spandau Ballet over rights to the songs.
Moreover, Cruiseco’s Australia National Marketing Manager Carolyn Mackley was providing temporary marketing support for the UK as part of her job. Finally, Reformation Publishing represented Spandau Ballet who owned rights in the recording and the songs.
The complexity of this arrangement and misunderstandings about which rights to clear seem to have contributed to the music clearance errors. Instructions were given to Aloha Media not to use uncleared recordings which had been used in early edits, but the music was not changed in the final edit. Even if the recordings had been changed as instructed, they still would have infringed Reformation’s publishing rights.
As a comms professional or producer, how can you protect yourself against problems like this?
Traps to avoid with music clearance
- Don’t leave it to chance, get music clearances in writing.
- Work directly with a producer who is not on the other side of the world, close contact will reduce the risk of miscommunication.
- Try not to go through an intermediary like a parent company.
- If there is a mistake, react immediately to remove the film from public view. Ask a colleague to check all copies have been taken offline while the issue is addressed.
- Remember there are normally two sets of rights. One is from the owner of the copyright in the recording. The other is from the owner of the publishing rights. Both must be cleared.
- Hit tracks can be expensive, and might be subject to dispute among the artists. Although it may be less appealing, good music from an archive is easier and cheaper to clear.
With thanks to SEQ Legal for bringing this to our attention.