Allegro

Choosing to Fight

Courage is expensive but the results are worth it

The mantra of my professional life is “Progress begins with one word: NO!” No, I will not sell my music on a buyout basis for a one-time fee; No, I will not sign a so-called standard work-for-hire contract that does not provide for an ongoing payment for the ongoing uses of my music; No, I will not work non-union. In my world, “NO” is a complete sentence.

I have been a member of Local 802 since 1953. I joined the union as a 16-year-old saxophone player because I wanted to be considered a professional musician, and for the last 50 years I have been a composer and producer of advertising music, working on “the other side of the glass.” Some of my compositions are “Nationwide Is On Your Side,” “When You Say Budweiser, You’ve Said It All (This Bud’s For You),” “Hershey Is The Great American Chocolate Bar,” “Weekends Were Made For Michelob,” “Trust The Midas Touch” and “I Love New York.” I’ve always worked for myself; I run my own company and I sink or swim by my own decisions.

Early on, I learned the hard way that documents known as “standard agreements” or “standard contracts” are not standard at all. They always favor the entity that prepared them.

In 1967, I wrote the music and lyrics for “Nationwide Is On Your Side.” As a newcomer, not yet knowing any better, I signed the Ogilvy-Mather Agency’s standard work-for-hire music contract, which legally transferred all rights to my song to the agency. All rights. When I asked, I was told casually by others in the business, “Oh, don’t worry, everyone signs it.” And while Nationwide liked my work and hired me for the next 10 years to score all their TV spots, I soon discovered that I had absolutely no financial protection if they wanted to hire someone else to rearrange my song. My relationship with Nationwide ended when I sought a residual for the uses of my arrangements. They refused; and I refused to work for them again. Today, as I watch the longest continuously running advertising campaign in the history of television, I earn nothing. Nationwide even refused to allow me to collect ASCAP composer royalties, operating out of some misinformed fear that they would be giving up something that has become automatic for all composers everywhere. But…I had signed their contract and given them the right to do so.

I learned volumes from my Nationwide experience. The top of the list was that if you give someone the opportunity to take everything away from you, they will. I learned that in business you don’t get what’s fair, you get what you negotiate. I learned that there is no such thing as loyalty in the advertising business. Nor should there be. An advertiser should have the right to work with whomever they choose.

But, I also learned that if I wanted to have my advertising music treated the same as other kinds of music, where composers retain their rights forever and receive some sort of payment for ongoing uses, I would have to fight back. I knew I couldn’t change them, but I certainly could try to change the way I did business.

I asked an attorney to prepare a contract, carefully making sure that it was an equitable agreement that I could sell – similar to the contracts that music publishers use when they license the uses of their songs for advertising. In it, my company would license the uses of my music to the advertiser, not sell them outright. I even asked the head attorney at a major ad agency to troubleshoot it for me, to confirm that it would provide his clients with all the protections that they needed: the exclusive use of my music in all their advertising for as long as they wanted as long as they paid a fee for ongoing uses – while my company retained all other rights, including ownership of the copyright.

That contract changed my life. From then on, every time I was asked to compose for an ad agency, I submitted it in advance, to be approved before I began work, wanting no surprise battles after the fact. And I made sure it was signed before my music went on the air. Each time, I repeated my argument for wanting to own my music: “You don’t get to own the copyright on the pop song you license for huge fees for short periods of time. Why should I give up mine when I have created something of lasting value to you, a custom-made original musical identity for your client’s product that could last for years?” I argued with agency business managers who were used to getting it all. And when they refused to bend, I fought with their lawyers, whose only purpose was to snatch up everything they could for their client and leave composers with as little as possible. Some ad agencies dangled huge creative fees if I would sign their standard contract. And there were agencies that would not even consider me for projects when they learned about my contract and my unwillingness to give up my copyright. I certainly didn’t win every argument. But I believed in my music and the effort that it took to create it, and I was willing to say “no” when I had to. I never worked without my contract again.

Through the years, I offered it to any advertising composer colleague who asked. It contained no trade secrets. My logic was that if other composers sought ownership of their music and a fee for its ongoing uses, it would make my own fight easier. Many took it; sadly, not one used it.

Courage is expensive. Friends outside the business urged compromise and said “you can’t win them all.” In some fields, compromise may indeed be practical, just to get the job done. But not when someone is trying to deny your rights. Copyright law says that from the moment of conception, all rights to what is written belong exclusively to the writer. What happens next is up to the writer and his or her understanding of the system. I’m proud of my fight and forever grateful that there were clients who respected the law.

 When I think about the source of my tenacity to resist the corporate culture that constantly denigrated the value of my work, I give great credit to my father, a Russian immigrant who came to America when he was 13 in search of a better life. Pop spent his career working as a civil engineer for New York City, but his efforts were always dedicated to making his children’s lives better in a changing world. He lived by example; he taught me about responsibility, and how to show up, and to take the first watch when it’s called for. He taught me about honor – the most important word in my life – and to follow through to completion when I said I would do something. And he taught me that sometimes, when all else fails, that change will only happen when you stand up against injustice. His spirit and wisdom provided me the strength I needed to resist the despair that clobbered me when my daughters were 10, 8 and 7, and their mother died of cancer. At 36, I had become a single parent and I raised my children alone, mistakes and all. From then on, while I was fighting for musical equality in a workplace that offered none, my professional resolve drove me to protect my kids in case I was unable to work for whatever reason, so at least there would be money coming in for as long as my music was played. I never again allowed another Nationwide experience in my life.

I had stumbled into the advertising world after a few years of writing songs and scoring low budget movies. There I found a musical home. For me, ad music wasn’t just a train stop between jobs or between songs. I loved the art form of writing jingles (a negative word now), and I loved the joy of recording with live musicians every week. I thrived on the quest for originality. Advertising is the face of America’s economy and music is its most memorable messenger. “Originality never goes out of style,” I would say in later years when the business changed and commercials began to use pop songs instead of custom-made original music. Advertising got lazy, ignoring the quest for originality because it was easier to borrow someone else’s originality and license a pop song. And advertising suffers: people hear a spot with a pop song today and they don’t recall the product, only the song (if that).

There is not one person who reads this who would write a song or a novel or memoir or screenplay or an opera or a work for theater – or any other work considered intellectual property under the law – who would give up all their rights in return for a one-time fee. Yet advertising agencies still demand their composers do exactly that all the time. And composers are still blindly signing away their rights.

The evolution of this legal bullying is traceable directly back to the first composer who, when faced with the threat of not getting paid, said “YES,” when he or she should have said “NO!” And while advertising composers and musicians are still the doormat of the industry, the ad agency’s bottom line depends on the creative ideas of people who don’t have the courage to stand up for their legal rights. Composers are afraid of losing the job if they make waves. Business has always been the natural enemy of creativity, and now we live in an “on-demand” world, which affects musicians as well as composers. Today, if you dare stand up for something you believe in, you are branded a troublemaker and are quickly reminded that there are others out there ready and willing to do it cheaper. And the Internet has opened up competition from the entire world.

Commercial composers had a fledgling trade association that lasted for a few years. We held monthly gatherings where colleagues came to bitch and moan about the sorry state of the industry. But it fell apart when no one was willing to risk nudging the status quo. Everyone was afraid. Mel Brooks, as the 2,000-year old man, was asked about the main means of transportation way back then. He answered, “Fear.” It’s still true today.

An army of one wins nothing. Composers don’t have a union, but musicians do. The problems facing musicians today are much the same as for advertising composers. I have been told many times by colleagues that “every composer is a person with a mortgage.” Just as every musician who is asked to work under scale or non-union or for cash is a person with a mortgage. But the person who works for nothing knows the value of his or her product. I was once called by a potential client, inquiring if I worked on spec. I answered, “No, do you?” He hung up.

 Where do you draw the line? Musicians love to make music, whether alone in their rooms or as part of ensembles. Their talent is a beautiful gift. But what happens when the song ends? A sign on the wall of a therapist’s office says, “There Are People Too Gentle To Live Among Wolves.” All musicians and writers are not born to be fighters. Many breathe the rarified air of creativity. Who protects these people from the corporate greed that wants it all for the cheapest price?

I am proud to be a union musician. The sole purpose of our union is to make our lives better. And as a signatory producer working under a union code, I have been privileged to have the greatest players in the world play my music – union musicians. Through the years, our union has fought to maintain minimum standards under which a professional musician can earn a living, as well as providing medical coverage and pension benefits. Without it, we will become victims of the wolves, and the forest is full of them. It is our job as members – our essential obligation – to support our union, and to encourage others to do so. Especially newcomers.

Things will improve when people are ready to stand up for what they believe in. Until then, please remember: “Progress begins with one word…”

 ©2016 Elsmere Music, Inc. All rights reserved. Used by permission.

 

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