Bourne Co. v. Twentieth Century Fox Film Corporation et al

Filing 31

DECLARATION of Karyn Soroka in Support re: 28 MOTION for Summary Judgment.. Document filed by Bourne Co.. (Fakler, Paul)

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Bourne Co. v. Twentieth Century Fox Film Corporation et al Doc. 31 Ross Charap (RC-2584) Paul M. Fakler (PF-0249) Julie Stark (.S-8925) Amanda J. Schaffer (AS-2004) MOSES & SINGF':R LLP 405 Lexington A venue New York. New York 10174-1299 Tel.: 212-554-7800 Fax: 212-554-7700 p Řikler(Ýt)mosess inger .com Attorneysj˛r Plaintiff, Bourne Co. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x BOURNE CO.. PlaintifC 07 Civ. 8580 (DAB) - against DECLARATION TWENTIETlr CENTURY FOX FILM CORPORATION. FOX BROADCASTING COMPANY. TWI:NTIETIl CENTURY FOX TELEVISION. INC.. TWENTIETIl CENTURY FOX IlOME ENTERTAINMENT, INC., FUZZY DOOR PRODUCTIONS. INC., TIlE CARTOON NETWORK, INC., SETH MACFARLANE, WALTER MURPIIY, Defendants. X I. i was hired by Bourne Co. ("Bourne") to offer an opinion as to whether external OL~ KARYN SOROKA issues, such as negative associations, have an effect on the selection and licensing of and, therefore, the value of songs, both in general and especially in relation to the song "When You Wish Upon a Star" ("Star") and the new lyric created f~)r it entitled "I Need a .lew" ("Jew"). 2. In addition the materials discussed below and attached hereto i reviewed a DVD copy The Family Guy Episode "When You Wish Upon a Weinstein," (the "Episode") featuring 692019v2 00920ý.O I 0 I Dockets.Justia.com the song "I Need a Jew," ("Jew"). 3. In my opinion, and based on my experience as a music publisher, aiiist representative and licensing specialist, negative associations can have a significant efJect on the value of songs. My conclusion is supported by (i) real world examples why songs are excluded or not chosen ¨)r use; and (ii) the significant eff˛rts made by writers, artists and their representatives to protect the integrity of their songs so that they will not develop negative associations which will decrease their value in the marketplace 4. i have worked in the music business j~)r over twenty-five years and in music publishing ¨)r twenty years. Since 1995 I have run Soroka Music Ltd. as a publishing company for a small roster ofwrIters and music publishing companies, f~)l whom I perf~ml1 copyright administration, license negotiation, royalty tracking and analysis and song exploitation functions. In addition, I do consulting and general business afŘl╠rs work for law firms, artists, writers and production companies. I also handle music and other rights clearances for a wide variety of projects including television shows, DVD's, commercials, records and books. This has given ine experience and perspective Ř-om the viewpoints of both licensor and licensee of musical works. 5. From 1993 1995 I worked at Sukin Law Group, an entertainment and intellectual property law firm, as a paralegal, where I handled a broad range of matters. Most relevant to the issue at hand, I was the liaison between the heirs of a major songwriter and the publishing company that owns the rights to this writer's songs for all synchronization licensing, which involved evaluating several hundred license requests each year. 6. Other work experience includes: Heart Entertainment Distribution, Inc. in the Legal Department (1992- 1993), EMl Music Publishing in the Copyright Department (1989 692019v2 00920ý.O I 0 I 2 1992) and Zomba Enterprises Inc. in the Business AmŘrs Department (1988 1989). In these positions, I was involved in the negotiation and administration of licenses f~)r musical compos itions. 7. I have not authored any publications within the preceding ten years. 8. I have not testified as an expert at trial or by deposition within the preceding four years. How Songs and Songwriters Earn Income 9. Songwriters and their publishers earn income by licensing their songs. There are generally f~)Ur income streams associated with a song: (I) Mechanical Licenses CMechaiiicals") -- royalties earned from the sales of various recordings of the song; (2) Synchronization Licenses CSyncs") -- income earned f˛r various uses of song in audiovisual works (e.g., Iims, television shows, commercials, DVDs, etc.); (3) Public PerÝ~mmmce Licenses CPer¨mmmce Income") --income earned from the public performance of song (e.g., in live music venues, television and radio stations, movie theaters outside of the U.S., Internet, etc.) and (4) Print Licenses ("Print") -- income ═╠mii sheet music and folios. 10. These income streams are interrelated and success in one stream generally flows to the others. For example, the more successful a recording of a song is, the more Mechanicals it will earn. A successful single will not only earn Mechanicals from the sale of the record, but will also be played on the radio and earn Performance Income. The radio play will, in turn, increase record sales and Mechanicals and provide a demand for printed sheet music. In addition, a successful song is likely to be used in TV shows, films and even commercials, 692019v2 00920ýO 101 3 generating Sync fees. Such additional uses also generate Per¨mmmce Income when the films or shows are aired on television or on the Internet, which increases exposure to the music and may further increase record sales, continuing the income-generating cycle of the song. I I. If a song becomes successful to the point where it is considered a "standard," it will be recorded by many different artists f~)r years to come, continuing the cycle of income in all of these areas. If a song, f~)r whatever reason, does not get selected for placement, it will never get a chance to enter into this cycle of income. 12. Income earned fý"om Mechanicals, Public Pert˛rmance, Syncs and Print uses are how songwriters and music publishers are paid and how they earn their living. Unlike recording artists, who can make money by pertorming, selling merchandise and making public appearances, the income streams discussed above are the sole source of income for most songwriters and music publishers. Anything that reduces the value of their songs directly affects their income and their ability to support themselves and their families. And, as shown above, a missed oppOliunity anywhere in the chain can have a domino effect on a songwriter's and a music publisher's income f~)r years to come. Reasons Whv Songs Are Excluded Or Not Chosen For Use 13. One of the major activities of a music publisher is trying to find new avenues through which to exploit its songs, including pitching songs for artists to record on a record and placing songs in films, TV shows and commercials. With respect to the latter, the licensee chooses a song in order to trade on the association the audience has with that song in a way that's relevant to the product being sold or to the nature of the scene in the movie or TV program. While some of these uses may simply fall into place without any specific effort, signitýcant work 692019v2 00920ý.O 101 4 does go into placing songs in projects. There are several tip sheets to which music publishers commonly subscribe, including New On The Charts, Row Fax, SongLink and CueSheet, which contain listings of artists looking ¨)r songs to record and TV shows and films in production, along with scene or story descriptions. Music is submitted f~)r these listings by mail or over the Internet and also in face-to-face meetings with A&R Representatives (the person at a record company who oversees the selection of songs recorded by a musical artist), Music Supervisors (the person who recommends and selects music to be used in films and TV shows) or Ad Agency Representatives (the person who recommends and selects music ¨)r television commercials). 14. Why a song isn't selected is almost never overtly made known. I very rarely will receive a phone call fhmi an A&R Representative or a Music Supervisor to tell me that they were considering using a song but then decided not to f~)r a specific reason. Usually the only communication is when a song is selected and a license is being requested. 15. IIowever, tip sheets and Řice-to-Řice meetings do provide some clues as to what goes into the decision-making process. Listings in tip sheets, in addition to offering specitýcs about the required tone, tempo, style, content, etc. will sometimes also tell what is not wanted in a song f~)I" consideration. I have seen many listings that specitýcally state that submissions must be sample-fýee (i.e., contain no snippets of previously recorded, third-party works) or must contain no ¨ml language or must have only clean lyrics. This makes it clear that no matter how appropriate a song might otherwise be for the potential use, if the content of the song is likely to offend the general public, it simply won't be considered. 16. I have found that Christian record companies have particularly strict guidelines about song selection. I have been in pitch meetings with Christian labels where the A&R 692019v2 00920ýO I 0 I 5 Representative has listened to the song and commented Řivorably about it but then, upon close reading of the lyrics, Řmnd a possible sexual innuendo and immediately said that the song could not be considered. I have also been in discussions regarding the licensing of an entire album by a Christian music distributor, and was advised that sexual content or even a single, mild, curse word on an album almost definitely means it won't be able to get distribution into the Christian market, and especially into Christian bookstores, which are a major source of sales f~)r this market. 17. Possibly one of the most fÓmous recent examples of external Řictors affecting the value of songs involves the Dixie Chicks, a very popular and multi-Grammy Award winning country music act and "the biggest selling female group in music history." See Chicks In The Line OfF ire" T¨ne - May 21,2006, attached hereto as Exhibit "A." the Dixie 18. In 2003, just before the start of the war in Iraq, one of the members of Chicks stated on stage, ',(iJust so you know, we're ashamed the President of the United States is from Texas (the home state of the members of the Dixie Chicks)." See Exh. A. As a result of this statement, the Dixie Chicks' music was banned from thousands of country radio stations, which, at the time, was the main radio outlet for the Dixie Chicks' music, directly resulting in lost perlormance income, lost record sales and, therefore, lost mechanical income and all of the other licensing and income opportunities that typically flow from a hit record. 19. Several years after the incident, there are still country radio stations that will not play the Dixie Chicks' music and record sales and ticket sales for their live concerts are not at the level they used to be before the controversy. Dixie Chics Soundscan Report February 24, 2006, attached hereto as Exhibit "B," "Dixie Chics Shut up and Sing in Toronto" - MSNBC.com- 692019v2 00920ý0 I 0 I 6 September 13, 2006, attached hereto as Exhibit "C" and "NBC, CW Shy Away From Chicks Flick" - E! Online - October 27,2006, attached hereto as Exhibit "D." 20. It was also reported that in 2006 the NBC and CW television networks refused to air commercials advertising the Dixie Chicks' documentary about this experience, Dixie Chicks: Shut Up And 5'ing, again resulting in lost promotional opportunities and lost sales. and D. Exhs. C Efforts Made To Protect The Integritv Of Songs 21. It goes without saying that artists, their managers, songwriters and their publishers know how important it is to protect their reputation and integrity in the eyes of their fans if they want to continue to earn a living in the music business. Two recent examples are: 22. John Mellencamp asking John McCain to stop using Mellencamp's songs, "Pink IIouses" and "Our Country" (which were written and pert˛rmed by John Mellencamp), in his presidential campaign, saying that the situation made him uncomfortable. Mellencamp is a known liberal Democrat, while McCain is a Republican. See "McCain Camp Stops Using Mellencamp Songs" - Associated Press February 7,2008, attached hereto as Exhibit "E." 23. Tom Scholz, of the band, Boston, asking Mike Huckabee to stop using Boston's song, "More Than a Feeling" (which was written by Tom Scholz), in his presidential campaign. In Scholz' letter to the Huckabee campaign, he stated that "(tJhe unfortunate misconceptions caused by your campaign now live indefinitely on Internet news sites and blog archives. . . .I hope you will help undo the damage still being caused by this misleading use of BOSTON and More 692019v2 00920ý.OIOl 7 Than a Feeling." More Than a Feeling Writer Says That Mike Huckabee Has Caused IIim Damage" - Rolling Stone - February 14,2008, attached hereto as Exhibit "F." 24. I have been asked by many clients at various times to avoid certain licensing opportunities or reject license requests because the use of the song contlicted with the values of that client or because they thought the context of the use was not up to their standards or values in some way and would, theref˛re, diminish the value of the song either monetarily or in the eyes of their ▄1Is. Examples include: 25. A client asking me not to submit his song to a major tobacco company for a potential use because of his belief in the dangers of smoking. 26. A license request f˛r the use of a song on a network TV situation comedy that was denied because the songwriter died of a brain tumor and the episode involved a doctor perf˛rming a lobotomy while listening to that song, which was considered by the songwriter's representative to be in bad taste. 27. A license request for the use of a song in a syndicated magazine show that was denied because the client thought that the show was "sleazy." 28. A license request for a major studio motion picture denied because the client didn't want his song connected with the violence and f˛ullanguage in the script. music publishing and recording contracts, 29. In a more general way, almost all regardless of whether or not they give the writer and/or artist approval or control over potential third-party licensing, provide some sort of approval over the use of their songs or recordings in so-called x-rated films or political advertisements, which is an indication that both sides 6920 00920ý.OJOI 8 acknowledge how detrimental to the value of the songs and the writer's and/or artist's reputations these types of uses can be if they conflict with the values of such writer or artist, and may ot1Ŕnd the audience. ".Jew" Likely Had and Wil Continue to Have a Negative Effect on the Commercial Value and Licensing Potential Of "Star" 30. "Star"Ýs one the most ▄imous songs of all time and is widely perceived as a classic. The American Film Institute, in recognition of songs that have "captured the nation's heart, echoed beyond the walls 0 f a movie theater, and ultimately stand in our collective memory" included "Star" in its list of the top one hundred movie songs of all time. See AFls i 00 Years... 100 Songs - http://www.afý.com/tvevents/lOOyears/songs.aspx. 3 i. The song's wholesome expression of etemal hope and reward has led a very wide range of musical artists -- from Rosemary Clooney to *N Sync ... to record it in order to share this message with their Řms. All Music Guideand ASCAP 32. I have reviewed the use of "Star" in "Jew" and believe it is both highly controversial and would be viewed as ot1Ŕnsive and jolting by a broad cross-section of the viewing and listening public. "Star" is evidenced by the list ofcwer one hundred 33. The mainstream appeal of musical aiiists who have recorded it (as listed on the All Music Guide and ASCAP websites). The mainstream market is where most music sales are made and where most royalties are earned. It is also the market most likely to be taken aback by such a controversial and o═╠ensive connection with a song, directly impacting the song's ability to still speak its message. 692019v2 00lJ0ýO 101 9 34. As such, and applying the principles I have discussed above, it is my opinion that the offensive use "Star" in the Episode has likely had and will continue to have a negative eHect on the commercial value and licensing potential of this beloved song. Pursuant to 28 U.S.c. ž 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed in New York, New York on the 20 of 692019v2 00920ýO I 0 I 10 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F

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