NEVER ASSUME

My previous business, Leap Music, was a joint venture with an advertising agency in the 2000s. The company’s core activities were the brokering of sync deals and the supervision of bespoke scores for the agency’s brand clients. The latter also involved the acquisition of copyright in original compositions. This made Leap a music publisher, much to the irritation of the mainstream music publishing business and trade body PCAM who represented many music production companies.

One of my co-directors within Leap had a wonderful expression which I still use to this day. It speaks to the importance of due diligence.

“Assumption is the mother of all f***-ups”

Never was this more relevant than in one of my first projects for Leap, before the arrival of any colleagues, in which my reliance on assumption was deeply flawed.

One of the advertising agency’s clients was a well-known bakery brand. Their bread was frequently TV advertised, leveraging the heritage of the brand’s family run business. For a new campaign, Leap was tasked with creating an instrumental re-record of the famous hymn “Morning Has Broken”. Like many people, I had fond memories of singing this in school assemblies as a child.

Per usual practice, I checked the PRS database to establish that the composition was public domain. As I anticipated, there were many arrangements of “Morning Has Broken”, all with different arrangers and publishers. Furthermore, the composer was denoted as “Trad” and the publisher as “DP” (i.e. public domain). All this tallied with what I expected to find for public domain work registration. With this evidence, the advertising agency was able to engage a music production company to create a new re-record of “Morning Has Broken” which included a licence for the first use. The arrangers thereafter assigned their arrangement as a new copyright work to Leap Music which was subsequently registered with PRS. All this was straightforward enough.

As I recall, once the campaign was launched, an idea emerged for a further film within the campaign using the same re-record of “Morning Has Broken”. However, unlike the launch film, the advertising agency now wanted a vocal version with the words sung by a school choir. The agency team and music production company were despatched to Yorkshire where a local school was selected as the location for the recording. The team duly returned with a charming rendition designed to tug at the heartstrings of all who heard it. There’s nothing like the sound of children’s voices to drive emotional engagement, as I expect the account management team would have told their clients at the bakery brand.

I remember briefly considering the lyrics and thinking “it’s a school hymn .. so it’s public domain just like the music”. I thought nothing further; the second film was launched with the vocal version of “Morning Has Broken” and everyone was happy. We moved on to the next project.

A few months later, I was passed a letter that had been received by the agency’s Legal department. The letter had been sent by the literary agent of Eleanor Farjeon, the author of the lyrics of “Morning Has Broken”, originally published in 1931. Whilst Farjeon had died in 1965, her works are still in copyright now in 2024, and certainly were back in 2003 when this story took place. Following some panicked research I discovered to my horror that Farjeon’s lyrics were not public domain and should have been licensed from her estate who still controlled the copyright. This was a terrible schoolboy error on my part, based on a false assumption and failure of proper due diligence. Such a mistake was a considerable embarrassment to me during Leap’s first year of business.

So, what happened?

As I always advise Resilient’s clients if an unauthorised usage has occurred, I did the most important thing first: Reach out and apologise, profusely. This was an oversight, for which there was no justifiable excuse, but it wasn’t deliberate. A profound apology, if delivered with humility and contrition, goes a long way to making amends.

That said, to “make things right”, money has to change hands. In this instance, Leap offered to pay a retrospective licence fee which, after some negotiation, was accepted by Farjeon’s agent. I recall it was a reasonable sum and once the accompanying licence was fully executed, we breathed a sigh of relief. It could have been far worse.

Although these events occurred more than twenty years ago, they are a stark reminder of the importance of proper due diligence. We remember the “lessons learned the hard way” and they should inform how we operate in future. When researching copyright status of music, I now try to abide by the mantra of “check, check and check again”. My team and I cross-reference findings across multiple database sources and double-check our findings with the rights owners that appear to have a copyright interest. It’s not uncommon that PRS registrations, especially for co-published works, have multiple un-merged entries, where the total percentage doesn’t add up to one hundred. Only through detailed due diligence can we uncover the whole truth and so properly advise our clients prior to the negotiation of licences.

For more information on public domain status of compositions, you might like to read this recent blogpost.

If you have any questions about due diligence, please get in touch on richard@resilientmusic.com