Bourne Co. v. Twentieth Century Fox Film Corporation et al
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
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
07 Civ. 8580 (DAB)
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,
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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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
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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
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
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,
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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
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
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
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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 ¨)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
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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
17. Possibly one of
the most fÓmous recent examples of external Řictors affecting the
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
ire" T¨ne - May 21,2006, attached hereto as Exhibit "A."
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
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
2006, attached hereto as Exhibit "B," "Dixie Chics Shut up and Sing in Toronto" - MSNBC.com-
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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.
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
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
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
".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.
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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. ž 1746, I declare under penalty of
perjury that the foregoing is true
Executed in New York, New York on the 20 of
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