# Company logo used in films without my permission



## Cat (Jan 21, 2017)

I just discovered that a production company used my original music for their logo in their films. One of them is an internationally distributed film that has already played in theatres. Not an "A" film, but still...

It is a 10 seconds music logo for which I am planning to initiate legal action. 

Question is: does it matter that it is only 10 seconds? Is there any duration threshold that needs to be exceeded in order to be able to sue?

Again, I did not give permission, written or otherwise, to use my music.


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## Daryl (Jan 21, 2017)

Cat said:


> Question is: does it matter that it is only 10 seconds? Is there any duration threshold that needs to be exceeded in order to be able to sue?


No, and it's not just your music, I assume, it's also your recording. Two different copyrights.


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## mac (Jan 21, 2017)

I'm willing to bet that the company legally licensed the music somewhere, and you've been a victim of another 'composer' using your music and passing it off as their own composition.


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## afterlight82 (Jan 21, 2017)

As you go about this, be very, very careful who you email, how you email them, etc. etc. - to keep a legal claim solid there are certain things you can't do. You need to speak to an attorney first. Your best bet is likely going to be to force a settlement, because these things are a nightmare in terms of expense to go to trial.

There is no threshold on length. You need to speak to an attorney with experience in litigation. They will want a retainer to go much beyond an initial meeting, though most will meet for free. I don't know there are many that do this on contingency, but if the distribution company is reasonably major, there is blood to be extracted from the stone, but they will likely try to shunt the liability down the line to a production company that might have been wrapped up already - or a composer who has stolen your music - and you'll have to engage in significant discovery.

That said, if you placed the music somewhere, and the license allowed them to do this (i.e. if you don't own the track outright and it was created "for" something)...well basically, you need to be damn sure before you threaten litigation, because you can get in trouble for filing a frivolous suit if it turns out there was a legitimate license (it happens - say when someone posts something to certain websites, that website might have a small print thing about them licensing it or whatever...). Not saying that's the case, obviously, but just be careful as you go about it, as there are pitfalls. Good luck!


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## afterlight82 (Jan 21, 2017)

Also, having some experience with the lawyer side of it...you need to keep the reins tightly on them. Have them confirm anything they do for you _before_ they do it. Otherwise, they'll sit at their hourly rate and read through mounds of discovery documents. You need to find one you trust, but YOU are the boss, and they need to understand that, otherwise anything you could extract, a sizeable percentage - maybe all of it - will go to the attorney.


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## afterlight82 (Jan 21, 2017)

Your first port of call that you could easily do yourself if you've not already is to go to BMI/ASCAP and pull the cue sheets that they have likely filed and see what the deal is there. Don't post any details publicly about the case, you need to keep a tight rein of what you say and where...


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## Cat (Jan 21, 2017)

Thank you Daryl, mac and afterlight82 for your input.

Does anyone know exactly what kind of lawyer (as in specializing in what) should I be looking for? I would also vigorously try to get a contingency deal as opposed to hourly rate. The distributor is a relatively big company...

I can't really get into details but it is definitely not the case of another composer stealing my music or sub licensing from a third-party or website, etc. With the evidence I have it is a pretty straight forward case. It will be a nerve wrecking ride for me nonetheless


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## mac (Jan 21, 2017)

Good luck to you then, I hope you get those monies!


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## airflamesred (Jan 21, 2017)

Good luck and let us know what happens.


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## afterlight82 (Jan 21, 2017)

Specialism in music copyright litigation. You want to find out initially what company used the logo and the location of their headquarters and office(s) because you need to find the jurisdiction in which any case would be filed, because you need an attorney with easy access to that jurisdiction in case you do go to trial. I believe it's a federal case in the local federal district court. Federal court is generally more expensive, I believe.

Ideally, you don't want to ever have to file a case and a legal shakedown will yield a speedy settlement offer. Is the infringing company the distributor themselves, or a production company? If it's a production company the problem you may have is the firm may not exactly be swamped in cash and collecting on a judgement, if you have to go to trial, can be hard...they set these firms up as LLCs and empty them, and you can't get blood out of a stone. But that's not always the case. If it's a currently working company with offices and employees...you stand a better chance I would reckon, but I'm not an attorney.

Good litigators run up to and including (and maybe beyond!) $600 an hour...and will probably want a $5k retainer if not on contingency. You might want to seek out a smaller firm that can be a bulldog. Contingency deals can be surprisingly high percentages. The amount of damages may not be enticing enough to some. Actual damages (the amount you would demonstrate you would have lost) may not be that high, since it might be limited to what you would have charged to license it in an ideal world, and profits, which will be a fraction of the actual film profits...the alternative of statutory damages depend entirely on the intent involved...if you prove they did it intentionally and knowingly (via, say, discovery), it's capped at $150k per infringement, but if you can't it's only $30k, and if it's an innocent mistake (like a miscommunication) then it could be a tiny fraction of that. Intent is a big deal. See:

http://www.nolo.com/legal-encyclopedia/copyright-infringement-how-damages-determined.html

One question, without mentioning specifics....from where did they obtain the music? Do you know?


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## Cat (Jan 22, 2017)

afterlight82 said:


> One question, without mentioning specifics....from where did they obtain the music? Do you know?



From me. Years ago, when the production company was struggling with getting investors for their projects and were doing a lot of pitches for possible distributors, I did the logo music (along with many other works "on spec"). There is absolutely no contract or any other written consent (emails, etc) where I grant them the rights to use the logo music in a production, commercial or not.

Recently they got somewhat big and released this film (playing in select theatres) with a substantial budget, with a major international distributor, in which they used my music for the logo!! I only discovered this because I happened to watch the film.

After all the free work I did for them (which they said they loved) one would have expected them to hire me for the real deal - paid work...Nope. But this is not the issue here, this has no legal relevance, it's just a side note.

So there is no honest mistake here, in my opinion, they definitely knew it was my music. They should have also known we did not have any contract or written agreement for the logo. And it is not a LLC, it is the actual production company, with employees, etc. The lawyer will probably have to decide weather we should go after the production company or the distributor (big name). Of course it is all about doing a shakedown and trying to get a nice settlement. And hopefully having some money left in my pocket after paying all the legal costs


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## Daryl (Jan 22, 2017)

OK, now I know more, I can say that you're in a difficult situation. Without any sort of contract, you can't prove that you didn't give them a license to use your music for all future productions that the company does. Neither can you prove that you didn't sell it to them in a buyout. If you are in the UK, being a PRS member will give you some protection from the latter, but if you are in the UK, I think you're possibly on a hiding to nothing. Do check with a lawyer, but you may just have to let this one go.


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## Baron Greuner (Jan 22, 2017)

Did you publish the music on SoundCloud or something similar, or do you have your own publisher?


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## Cat (Jan 22, 2017)

Baron Greuner said:


> Did you publish the music on SoundCloud or something similar, or do you have your own publisher?



No, this piece of music has never been posted anywhere and I don't have a publisher.


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## Baron Greuner (Jan 22, 2017)

So as you say, you sent it to them some time ago? Could be a difficult one for you as Daryl mentions. I think you've been unlucky on this occasion.


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## Cat (Jan 22, 2017)

Does the fact that one sends a piece of music to a company (as a spec or a demo) mean that the company has the right to use it however and whenever they like, without being given the rights by the author and without paying any compensation? If this was the reality, then why do we still need lawyer-proofed contracts in our business?

Also, just wondering, how can one ever prove the absence of a contract/payment? They definitely can't produce any proof that there is one but you can't prove the nonexistence of something.

These are just my thoughts, I obviously need the opinion of a lawyer. I realize that it might be an uphill battle...


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## rJames (Jan 22, 2017)

Sorry, read a little of this thread yesterday and a few comments this morning so this may have been discussed already. 
Have you talked to anyone at the film company about this yet?
Do you know what the "going rate" is for this type of license?
Did you apply for copyright or whatever they call it in UK?
First, you can contact the company and tell them that they need to pay a license fee to use the cue you sent them. You can inform them of the normal fee and request that they pay you. You could negotiate this fee to make it agreeable to you and them so that this will be over. 
Unless you are willing to spend a bunch of money in court, big companies can bully small companies. 
You don't have to prove that they didn't buy it from you legally or that you didn't give it freely. They have to prove their side. You can ask them for that proof if you are on good terms as you ask them kindly. It is in their interest to stay out of court too. But I assume they are more prepared, financially, for court than you are. 
But a lawyer can do a negotiation without going to court as well. Probably with better results than you but at a cost.


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## afterlight82 (Jan 23, 2017)

Ok, so will be super honest with you here! It's no reflection on you, just not going to give you any BS.



Cat said:


> From me. Years ago,



That's a problem.



Cat said:


> when the production company was struggling with getting investors for their projects and were doing a lot of pitches for possible distributors, I did the logo music (along with many other works "on spec"). I was told that it was only going to be for those specs/pitches.



Were you paid in any manner for any of the others? Did this company pay you even a dollar? If so, that's an even bigger problem, especially if that contract wasn't explicitly clear.



Cat said:


> There is absolutely no contract or any other written consent (emails, etc) where I grant them the rights to use the logo music in a production, commercial or not.



They may claim an oral contract, or an implicit contract/consent because of the time elapsed. Tricky area legally. Irrespective, your chance of clearing the burden of proof you will have as regards _intent _is going to be very hard, because if you gave them music, they put it to picture and you were aware that it was to be put to that picture (say for example, they sent you the picture) - at worst they can turn around and say "it was a mistake, a clerical error when we were a fledgling company and we didn't understand the legal ramifications" - and the chances of your damages being much of anything at all are remote. That's really more US copyright law than UK (not sure what jurisdiction this is), but still...a judge is not going to give you hundreds of thousands here. You did the work on spec which they will use as evidence your valuation of that piece was not that high. Yeah, the law is a crappy deal, but what would you have received as payment at the time given you knew they were a startup? (rhetorical question). You're not likely to see much beyond that now.



Cat said:


> Recently they got somewhat big and released this film (playing in select theatres) with a substantial budget, with a major international distributor



Distributor is irrelevant and the budget of the film they attached it to is irrelevant legally, unfortunately.



Cat said:


> in which they used my music for the logo!! I only discovered this because I happened to watch the film.



That's a crappy experience, for sure. Sorry you're going through this.



Cat said:


> There are two more subsequent doc films they are about to release (or already released, not sure yet) and I bet they will both have my music as well. Will have to do some research.



Don't leave it too long. Not sure what statutes of limitations apply here.



Cat said:


> After all the free work I did for them (which they said they loved)



Boom - in court, you likely would lose with that single sentence, because even calling it "free work" implies it as something you did in expectation of future payment through future work.



Cat said:


> one would have expected them to hire me for the real deal - paid work...Nope.



Another example of a problem - if you even hinted in an email that this work could be in exchange for future paid work, you may have created an implicit contract. That's the problem.



Cat said:


> But this is not the issue here, this has no legal relevance, it's just a side note.



Nope, it has complete legal relevance, unfortunately! Whenever the paperwork is lacking, the next thing everybody looks to is "was an implied or oral contract created?"



Cat said:


> So there is no honest mistake here, in my opinion, they definitely knew it was my music.



Doesn't matter, Court isn't about "what we all know, nudge nudge, c'mon" it's about what you can prove. Proving intent (state of mind) is very hard. Although there are aspects of "equity" in the process, and it's about persuading a judge, when the award of damages is discretionary you have problems when your case is not clear cut legally. And from the sounds of it this probably isn't.



Cat said:


> They should have also known we did not have any contract or written agreement for the logo.



"should" means nothing in court. It's more about "did". It's very easy for them to argue a clerical error, even if they don't argue that you did it for free in expectation of future work which just didn't pan out.



Cat said:


> And it is not a LLC, it is the actual production company, with employees, etc.



OK, but you don't understand what I mean - all corporations are set up with a particular structure (in the US, C/S Corps or LLCs, for example) to take advantage of the differing liability shields those structures offer, as well as for taxation purposes. Which is why you can have a company get sued and the owners walk away owing nothing. They can vest ownership of the logo or a film in another entity altogether. Setting up a corporation is partly about creating an entity to do business with, but also partly so if your company gets sued, you don't lose your family's house, for example.



Cat said:


> The lawyer will probably have to decide weather we should go after the production company or the distributor (big name).



Distributor is irrelevant as their contracts will absolve them of liability due to the mistakes of others and they bought the material in good faith probably with warranties that it was free of copyright claims. You cannot sue the distributor (well...you can...but you would lose, because they've not done anything wrong).



Cat said:


> Of course it is all about doing a shakedown and trying to get a nice settlement. And hopefully having some money left in my pocket after paying all the legal costs



My advice would be - find a music copyright lawyer and go for a consult. You need to be up front with them especially as regards anything and everything that was emailed at the time. If you hide something, like an email where you might have accidentally said anything about doing this free or implied anything, know that it'll come out in discovery. You need to get an honest opinion as to whether you have a claim here, as the best thing you may be able to do is to negotiate a retrospective license with them that covers it for the future. If you don't have a legal claim that'll stand up or be worth enforcing, then you want to be nice to them and arrange a retrospective license, collect the royalties from it and hope it gets used lots in the future and they are successful. The lawyer may be able to do this for you for a small fee. From the sounds of it, you're not looking at a big payday here, sorry to be blunt...it's a crappy situation.


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## afterlight82 (Jan 23, 2017)

And that's not to say you aren't going to get something out of it - it's about the facts (which are, in court, what the judge decides the facts are - they are literally "the finders of fact"), which you should certainly not post here in any more detail (the lawyer will tell you that!).


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## afterlight82 (Jan 23, 2017)

Also, the reason I mentioned cue sheets was this - usually as part of deliverables a production company must submit the cue sheets completed to the distributor. It would be important to the lawyer to know what that says. The film and television departments of ASCAP/BMI/PRS should be able to tell you if a cue sheet was filed on a particular project, and ASCAP and BMI have online databases where you can start a search.


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## gsilbers (Jan 23, 2017)

rJames said:


> Sorry, read a little of this thread yesterday and a few comments this morning so this may have been discussed already.
> Have you talked to anyone at the film company about this yet?
> Do you know what the "going rate" is for this type of license?
> Did you apply for copyright or whatever they call it in UK?
> ...



I agree. trying to find the solution with the company will be best. Sometimes its a mix up on their end and they will gladly try to fix it once they realize it. if no one replies or says no, then use the courts/lawyers etc.
specially if there is a previous relationship.
interesting that everyone's first reaction is to say call a lawyer. Like if someone was killed or something.
just meeting a lawyer might be more expensive than the license. 
Plus if they are doing business with bigger distributors then it might be nice to find other gigs from them if a peaceful solution is met.


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## Cat (Jan 23, 2017)

Thank you guys for all the info - lots of useful stuff. Yes, the details will make all the difference but I can't really get into detail here  For now...

I got legal representation (in contingency) and we'll get it all started soon.
I will come back here in a while and let you all know how it worked out.


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## afterlight82 (Jan 23, 2017)

Good luck!!!


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