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)

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.: [phone] Fax: [phone]
p üikler(ít)mosess inger .com

Attorneysjòr 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

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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 ù)r use; and (ii) the significant effòrts 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 ù)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 afülÌrs 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 ü-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

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1992) and Zomba Enterprises Inc. in the Business Amürs 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 fòr various uses of song in audiovisual works
(e.g., Iims, television shows, commercials, DVDs, etc.); (3) Public Perí~mmmce Licenses

CPerùmmmce 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 ÍÌmii 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,

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generating Sync fees. Such additional uses also generate Perùmmmce 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 fì"om Mechanicals, Public Pertòrmance, 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, signitìcant work

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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 ù)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 ù)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 üice-to-üice meetings do provide some clues as to what

goes into the decision-making process. Listings in tip sheets, in addition to offering specitìcs
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 specitìcally state that submissions must

be sample-fìee (i.e., contain no snippets of previously recorded, third-party works) or must

contain no ùml 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

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Representative has listened to the song and commented üivorably about it but then, upon close

reading of the lyrics, ümnd 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 fàmous recent examples of external üictors 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" Tùne - 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-

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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 pertòrmed 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

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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, therefòre, diminish the value of the song either monetarily or in the eyes

of their Ü1Is. 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 fòr 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
perfòrming 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 fòullanguage 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

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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 ot1ènd
the audience.

".Jew" Likely Had and Wil Continue to Have a Negative Effect on the Commercial Value and Licensing Potential Of "Star"
30. "Star"ís one the most Üimous 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.afì.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 üms.
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 ot1ènsive 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 oÍÌensive connection with

a song, directly impacting the song's ability to still speak its message.

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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. § 1746, I declare under penalty of

perjury that the foregoing is true

and correct.

Executed in New York, New York on the 20 of

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EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F