Non Exclusive Re-Titling Deals 

I've received a couple different emails from clients recently who have asked me about the practice of re-titling tracks.  This is where a publisher or a music library takes a song that is already affiliated with another publisher and re-titles the exact same track something different in order to register the track separately with the writers´ PRO, essentially bypassing the songs´ original publisher as well as the database of whatever PRO the writer belongs to.
 
I've read different things about this practice and there are different opinions in the industry in terms of how ethical this practice is.  So I decided to do a little detective work recently to find out some more information for both myself and the subscribers of my newsletter.  I decided to start by calling ASCAP, my PRO.  I got through to the member services department and questioned the rep that answered about the practice of re-titling the exact same song something different.  The rep that I spoke with informed me that this happened all the time.  I was a little surprised to be honest so I questioned him further and asked whether or not this presented any sort of conflict of interest or was possibly a form of copyright infringement. He replied that he was ¨pretty sure¨ that it didn´t present any sort of conflict.  But the more I questioned him the more unsure he seemed. He just kept saying he was ¨pretty sure¨ that is was completely fine. After a few more questions he offered to transfer me to a different department, I agreed, but I ended up just getting someone´s voice mail.
 
Next I decided to call BMI, which is the other main PRO in the US.  I got through to their member services department in their New York office.  I questioned the lady who answered the phone about this practice and she immediately informed me this was not acceptable.  ¨Any single song can only be registered once in our system¨ she said.  ¨Simply calling the exact same song something else doesn´t make it a new song¨.  This response actually made a little more sense to me and it´s really what I had expected to hear from ASCAP.  

So I questioned further and asked whether or not they had a way of determining when this happens.  She instantly assured me that yes their screeners would catch this sort of thing.  This didn´t really make sense to me though because when you register a title with either ASCAP or BMI you simply enter a title into their database.  They don´t actually listen to the actual song you are registering, nor do you send them the actual recording. So how would they be able to determine if the same song has been re-titled? So I asked her, ¨Well how would your screeners actually catch this?¨  At this point she became really defensive and all of a sudden I felt like Michael Moore in one of his documentaries when he's questioning someone and has obviously hit a nerve! She then immediately offered to transfer me to the title registration department if I had more questions.  I agreed but ended up just being sent to someone´s voice mail again.
 
In Conclusion
I know of quite a few publishers who engage in this practice and despite the conflicting responses from the two main US based PRO´s, I don´t think there is much they can realistically do to prevent this practice from happening.  There is clearly a loophole in their registration systems and publishers are getting around this by simply re-titling tracks and calling the exact same song something different.

But the question is really is this a good thing or a bad thing?  And the answer to that question really depends on whose shoes you are in.  If you are a publisher that has signed an artist to an exclusive agreement and they go behind your back and sign the exact same song to a different publisher under a different title you´ll probably think it´s a bad thing.
 
On the other hand if you´re an artist and you´re trying to make a living from your music and you have your songs tied up with a publisher that isn´t placing your music or making you money, then I can certainly understand the temptation to go down this route.  
 
So what´s a writer to do?  Well I´ll leave that up to you. But my opinion is that you should always be ethical and honest if you want to cultivate successful long term relationships.  It´s easy to be cynical in this business, there are certainly some shady characters out there.  But in the long run re-titling tracks diminishes any given publishers uniqueness and cheapens and dilutes the music supply for all involved.  If you can get the same track, albeit called something different, from ten different publishers why do business with one over the other?
 
On the other hand, if you are signing multiple deals, and they are ALL non exclusive, this is a little different.  If all the publishers and libraries that you work with are all aware of what´s going on and you´re all on the same page, there really isn´t an ethical conflict in this situation at all. And it does seem like more and more publishers are offering these types of deals in order to sign more artists who may be reluctant about exclusivity. Just be aware of the pros and cons of this seemingly growing trend in the music licensing business and try to strike a balance that works best for both you and the companies representing your music.