5:34pm PT by Austin Siegemund-Broka
Fox Sports Underpays for Music Licenses, Claims Composer's Lawsuit
If you watched Fox Sports anytime since 2011, there's a chance you heard music for which the networks didn't pay. So says composer Deyon Davis in a lawsuit filed Monday over hundreds of uses his songs he says have scored sports on Fox without compensation.
Davis, who filed suit with his music publishing company Cinematic Tunes, says he's a former Fox employee who in 2007 helped the company develop a music library ("Fox Trax") for scoring sports programming.
When his contract was up, Davis says he agreed to license Fox music he composed for Cinematic Tunes for free, "based on the mutual understanding that if Fox liked the music and continued to incorporate it into their productions, it would eventually pay Plaintiffs to use it." In 2011, Davis signed an official agreement to license Cinematic Tunes' music library to Fox Sports.
Under the agreement, attached to the complaint (read here), Fox would pay him $1000 upfront and would pay license fees per use to performance rights organizations (ASCAP, BMI and SESAC), which function to pay royalties from music users (Fox Sports, in this case) to musicians.
That's where Fox's misconduct begins, claims Davis.
He says Fox repeatedly failed to pay the proper license fees to the performing rights organizations. In 2013, he says Fox terminated his agreement and substituted a new one, to which he agreed, stating the networks would pay him different rates for different uses of his songs ($500 per song in a program, $300 per song in a promo for one day, $1,500 per song in a promo for eight days, etc.)
He continued not to receive payment through May 2014, when he contacted Fox Sports Music vp Janine Kerr (who is a defendant) to ask about an accounting. Kerr returned to him with a figure he says hugely undercounts uses of his music — he says Fox counts 73, while the statements he's received from performing rights organizations indicate Fox has used his music over 800 times — and assigns him payment at rates lower than his agreement specifies, plus ignoring uses of his music in Ultimate Fighting Championship DVDs.
Could the discrepancies be honest mistakes or differences of interpretation? Davis thinks not — to put it mildly.
At the end of the complaint, he levels a series of incendiary accusations against the networks' general practices for music licensing, including regularly falsifying the “cue sheets" of music uses filed to performing rights organizations and even firing an employee who brought Fox's "fraudulent practices" to human resources.
“Fox did not bother to document each and every time it used a piece of music, and because Fox used so much music, it could simply fabricate how and when music was used,” states the complaint. "As one former Fox Sports Music employee put it, Fox's approach to tracking its use of music was characterized by 'ignorance, arrogance and apathy.'"
Claiming Fox dealt with him knowing it had "no system for accurately tracking the music it uses," he alleges fraud on top of breach of contract and the implied covenant of good faith and fair dealing. The defendants include Fox Sports 1 and Fox Sports 2, Big Ten Network and Joanne Terrell, who Davis says was a music business and legal affairs vp for Fox and now works at ABC.
Intriguingly, BMI sued Davis in 2010 for something very similar. The organization claimed Davis, running a business that purportedly represented songwriters in placing their music in TV shows including American Idol, So You Think You Can Dance and Jersey Shore, submitted falsified cue sheets to confuse royalty calculations and overpay himself $1.5 million in the process.
Davis hit back in counterclaims calling BMI a "bully" and claiming the organization "deliberately employs an unclear royalty calculation system for tracking public performances in order to decrease the amount of royalties it must pay to its affiliates."
He's represented in the Monday lawsuit by Neville Johnson and Douglas Johnson of Johnson & Johnson, who are known for big accounting claims against entertainment companies, like the class action lawsuits in progress against every major studio (except Universal, which settled in May for $26 million) over home video royalties.
A Fox spokesperson tells The Hollywood Reporter, "We have not yet been served with this complaint."