The Publishers’ Conundrum



When Madera Music bought the Just Right record label ten years ago, the sale included all of its assets. Bigger Hammer music publishing was one of them and controlled the exclusive rights to several songs on the first “Tailgate Tunes” album as well as having the co-publishing rights for several others.

We had applied for and in 2009 were granted the trademark for the name ‘Tailgate Tunes’ by the U.S. Patent and Trademark Office. It was an expensive and time-consuming legal process to get it done but ultimately proved to be well worth it.

The Happy Schapps Combo cassette, including the iconic song The Bears Still Suck Polka, the first song on Side B.

One of the songs we received the co-publishing for is “The Bears Still Suck Polka” by The Happy Schnapps Combo. We were well aware there were many people who made videos embodying their ideas about the song {and for better or worse, the Bears in general!}. They utilized the recording as a soundtrack to their videos and uploaded it to You Tube to share with the rest of the world. This was being done without any notification to us much less having our permission to use the song, which is illegal.

At one point several years ago, our attorney suggested that we send “take-down” notices to those who were using the recording illegally. It had gotten somewhat rampant with nearly 300 different videos featuring the song available on You Tube before a game at Lambeau Field one fall. As far as what it would cost to serve the “take-downs,” she indicated her firm could keep the expense down to about $250 by “batching” them together in smaller groups and having a legal assistant handle it. She also said that to simply ignore it could well result in it getting worse.

We proceeded to have the notices sent out. The videos were taken down as ordered and we received a couple of irate emails from the You Tube videographers who had produced them, about us being spoilsports and ruining their fun! We had expected some of that and took it in stride, chalking it up to the fact that over the years the song had struck a very responsive chord in many people, with some of whom took it way too seriously!

Not being familiar with the process, we had wondered how lasting the take-down notices would be. In checking out You Tube the week before we played the Bears at Soldier Field near the end of the season, we found fewer uses than there had been in the fall, but there were still well over 200.

In looking at the bright side of this, I’ve always been gratified the song has had and continues to enjoy such great popularity; this being over the 25-plus years it has been around. From our experience in the last 10 years, it has had greater demand than any of the other more than 30 selections we have in the Tailgate Tunes catalogue.

However, in checking You Tube recently, we found it has reached a new level. There are literally hundreds of videos using the song with neither permission nor authorization.

The proper way for someone wanting to use it would be to get a “Synchronization” or “Synch” license from the publisher, in this case Madera Music. It gives the recipient the right to use the particular piece of music in synch with other visual elements, thus legally becoming the soundtrack for their You Tube videos.

As the old saying goes, “If you can’t beat ‘em, join ‘em!” and that’s what we’ve decided to do this year. Instead of sending out take-down notices, we’re going to offer the You Tubers the opportunity to make it all legal by getting a Synch license for a very nominal fee. As for what that fee will be, we don’t know at this point because we’ve never had anyone request one in the ten years we’ve had the co-publishing on the song! That’s right – not one person who has ever made a video using “The Bears Still Suck” and put it up on You Tube has ever contacted us to check out the idea of doing it the right {and legal} way – imagine that!

However, we’re reasonable people. We’re don’t expect to get rich on this, but certainly wouldn’t mind seeing some of our substantial, five-figure investment in the enterprise generate a small return. We’re currently doing the due diligence by having our attorney explore the comparable fees being charged by other publishers in similar situations to see what the range generally is.

It’s going to be interesting and we’ll let you know what we find out in the next issue, just in time for the start of the new season. Until then, happy collecting!