There is in an interesting story circulating around concerning the ‘too big to fail’ Bank of America. It makes for good reading, and provides much food for thought. I have opted to keep certain names out of this narrative at this stage, but I am sure that it will now be very long before they step forward and identify themselves.

The story is a complex one and involves a number of organizations and people.

Let’s make a series of TV ads some BofA guy said. BofA of course is too busy in relieving their clients of cash in exorbitant banking fees to stoop down to the level of producing their own ads. Instead they farm that out to the Advertising Agency of choice BBDO. It is interesting to note that recently BofA dropped BBDO like they had a bad case of body odor. Was this story the reason? Probably not, but I am sure it might have been a contributing factor.

BBDO gleefully took on the project of producing a series of TV ads. Of course BBDO is too busy making money from BofA to actually do the project themselves. So they farm it out to a production company.

The ads are created, everyone is happy, and they start to air on TV. The ads are glossy and very high quality.

One evening a few days later a husband and wife are watching TV and one of the BofA ads come on. “That’s my damn song they are using” exclaims the musician husband.

So starts an interesting chain of events. BofA in their infinite wisdom had posted the series of ads on YouTube. Each and every one of them featured the same background music.

Mr. Musician is a well known and well respected singer/songwriter. He is hot under the collar. No permission had been granted for its use. In fact, had permission been sought, it would likely have been declined.

A series of letters and phone calls occur. BofA points the finger at BBDO, BBDO points the finger at the production company, the production company points the finger at the director, the director points the finger at Mr. Musician. The claim being that Mr. Musician does not own the rights to his own song, in fact they had permission to use it from another musician, a gentleman who many years ago Mr. Musician was a band member.

To add an even tastier layer to all of this, a large record label seems to want to get into the game.

The TV ads have been pulled from On Air and interestingly enough YouTube. However, Mr. and Mrs. Musician were wise enough to download some of them. To most people this might seem like a very clear cut situation, Mr. Musician has been wronged and the guilty should be punished. That is harder to achieve than one might think. Mr. Musician may be a well known and well respected man of his craft, but that does not mean that he has unlimited resources to take on BofA and their army of lawyers.

BofA are ‘too big to fail’ and may well be ‘too big to sue’. It is not about right and wrong, it is all about the clout that money has.

From a legal perspective the whole story is an interesting one that covers much ground. Clearly, the copyright is at the heart, but at who’s door does the blame lay? Once blame has been attributed, what should the punishment be? As memory serves the maximum fine for copyright infringement is $150,000 per instance. That was the sum originally assessed in the Kazaa file sharing case brought by RIAA (Recording Industry of America) in Capitol vs. Thomas.

In this case only one song is involved, but it was used in six different commercials, and viewed by millions of people, on literally millions of occasions. So is this one infringement, six infringements, or something else?  Each side will argue the extreme – one infringement versus millions. Does Mr. Musician aim solely at the copyright issue, or does he have other avenues of redress?

I asked Mannie Balring, my co-host on Barling & Barrett, who represents the Frank Capra legacy whether this occurs often in the media. Mannie told me that most production companies are meticulous about getting releases from anyone who could possibly make a claim on any music, video or photograph used in commercials or films. This kind of dispute is what every producer fears – one that causes his work to be removed from the media.

How much will this classic blunder cost BofA?  Will the production company be responsible for their lax commitment to finding all rights holders and obtaining releases?  Michael Bolton was sued by the Isley Brothers for allegedly lifting parts from their original song “Love is a Wonderful Thing” released in 1966. The Isley Brothers were awarded 5.4 million dollars the largest award in history for plagiarism in the music industry.  Can this happen to BofA.

Simon Barrett

   

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