Music by Design
Music by Design has finally won its four-year battle to prove rightful ownership of their Action Man tracks in France from 1993. David Mindel tells the full story:
In early 1993 music production and composition company, Mingles Music (now Music by Design), was commissioned by its client, Griffin Bacal, to write a new theme for a series of ‘Action Man’ commercials. Action Man dolls, manufactured by the giant Hasbro Toy Corporation, had been a very popular boys’ toy in the United States under the name of ‘GI Joe’. This name was deemed unacceptable to the European consumer, and so the toy was sold around the World as Action Man, becoming the biggest selling toy for boys over many years. Many versions of the doll were made plus accessories, vehicles, weapons, canoes, helicopters, villains etc, and each would be marketed via a new film.
The theme of the new commercials would be ‘Action Man, The Greatest Hero Of Them All’, and a melody for those lyrics was to be incorporated into the music track. Mingles Music’s David Mindel wrote and recorded a theme that was approved by the UK agency. By the autumn, the music had been approved by the clients, both in the UK and the US. The plan was to run the films with the UK music throughout the world, be it with local lyrics. The first of the new films was broadcast in November 2003. The music was published by Mingles Music, and the composers listed as David Mindel and David Seys, business partners at that time.
Around this period, and unbeknown to Mingles and Mindel, the agency handling the account in France elected to go its own way as the French are wont to do. Victor Meldrew (the name has been changed to protect the guilty), a French composer, presented something for the first film that did not bear the ‘Greatest hero of them all’ theme, just ‘Action Man’ and with a different melody, after which the French were instructed to fall in line with the rest of the world on the Action Man campaign.
More films were made; different arrangements of the music were recorded until the music tracks became more and more filmic while retaining the same sung line. Mingles would regularly receive from Griffin Bacal requests with purchase orders to use one or more of their music tracks in overseas territories including, on many occasions, France. A DAT of the backing track, separated vocals, voice-over and sound effects would be sent to Griffin Bacal who would be invoiced for a pre-agreed fee for the relevant territory and Mingles’ publisher in the country would be instructed to register the copyright. These registrations were made under the title Action Man and the name of the film, e.g.: Action Man Super Ninja (yes, really).
By 1996 the Mingles directors realised that very little Action Man revenue had come from France and Italy. The Italian publisher pointed out that as Action Man was not a song, there would be no payments for its use on the commercials. Universal Music, the sub-publishers for Mingles Music in France insisted that everything had been correctly registered, that some income had been received and more would surely follow.
In May 1997 David Mindel emigrated to France and Mingles became Music by Design (MBD). It immediately became obvious to Mindel that Action Man was receiving a huge amount of exposure on French terrestrial TV, especially on Saturday and Wednesday mornings (French kids don’t go to school on Wednesdays-Mindel stays home on Wednesdays). Taping one Saturday morning show revealed that it contained eleven or so Action Man spots. He contacted Music by Design and once more e-mailed Universal music who continued to insist that nothing was awry. This fruitless communication continued until 1999 or 2000 when it was decided that a new, specialist sub-publisher be sought. Nota Bene Music, Paris, was appointed sub-publisher and very soon reported that most of the Action Man titles had been claimed by another publisher, Zoulou Music and its compose Victor Meldrew -- although no-one at Music by Design was aware of his existence prior that point.
Xavier Nicod of Nota Bene then approached SACEM who were unhelpful to the point of being obstructive. They categorically refused to supply a list of Action Man titles registered by Zoulou, let alone the amount of revenue involved. According to Nicod, the mistake that had been made was failing to register the French titles of the films rather than just the English. He was right, but agency personnel are loathe at the best of times to provide additional information to their suppliers; getting all these names would have been quite an achievement.
Some research was done on the Net, and it transpired that the brother of the Chairman ran Zoulou Music out of the French Advertising agency’s office. Meldrew was principally known as a composer of children’s music, but was, in fact, also a Creative Director at that agency. The plot thickened like a pound of Bisto. Mindel, after consulting his erstwhile partners, wrote a firm, yet conciliatory, letter to Thierry Brossard, the principal of Zoulou Music. He stated very clearly what he had discovered, but gave Brossard the opportunity to claim that the receipt of the Action Man revenues had been an awful mistake and suggested that restitution could be made without the need to pursue the matter through the courts. The reply was one of indignant outrage: the good name of his composer and himself had been besmirched; legal action for slander might be taken, he had never heard of Mindel and that all the French Action Man creative work had been carried out in France. What now?
Mindel and Seys visited the PRS who seemed fascinated by this state of affairs, stating that this kind of thing was not unheard of in France; the legal department would be consulted and a further meeting would take place. MBD had managed to download various French versions of the Action Man films from the Xtreme website. All Action Man films, no matter in which country they were dubbed, tend to have a high-powered voice-over and screaming sound effects that all but obliterated the music tracks. Nevertheless, it became obvious that the tracks on the French films were derived from just one English version, often edited, but just one track rather than from the thirty or so that had been specifically scored for later films. Shortly thereafter a royalty statement from Nota Bene contained income from ONE Action Man film that had slipped through the net. The amount persuaded everyone that a large sum of money was at stake and that legal action would be worthwhile. A publisher in Paris recommended a lawyer who specialised in this kind of case; the publisher said that he was always concerned when this individual represented a writer against him as he mostly won his cases. This seemed to be the man for this case. Music by Design elected to pursue this matter on it’s own behalf and on that of its writers.
After various documents were sent to the lawyer, Maitre Schmidt of Schmidt-Goldgrab in Paris, Mindel and Seys made an initial visit armed with all kinds of evidence: PRS/MCPS registration documents, CDs of music tracks, videos of French and English films, the break-down of each instrument from the original 24 track tape, singers’ invoices; orders from Griffin Bacal etc etc.
It turns out that the French legal system is as far removed from our own as foie gras is from fish and chips. For a start, the reasonable first letter sent to Zoulou Music was deemed heavy handed (in their words, menacing!) and inappropriate. Everything in French law is carried out as if you are dealing with your best friend, polite and courteous to the extreme. Therefore a charming letter had to be written to the Zoulou/Meldrew lawyer along those lines before action could be taken.
What action could be taken? It seemed there were several options, various types of courts that might handle this kind of action as well as the decision whether to pursue the case as a criminal or civil matter. Schmidt was presented with the evidence, but the lack of similarity between the English tracks and the French versions (taken from an earlier film, remember) made comparisons particularly difficult. Maitre Schmidt is not musical, but he recognised that the tune for ‘Action Man, The Greatest Hero Of Them All’, and the French, ‘Action Man Le Plus Grand De Tous Les Héros’ was basically the same. Voilà!! This would be the best basis on which to sue Meldrew and Zoulou. Maitre Schmidt took on our case, sent the letter and money changed hands.
The PRS meanwhile had decided that their legal team preferred not to be involved for the moment. Aren’t they wonderful?
The reply from the defendants’ lawyer was predictable. With it came an incomplete SACEM registration form. Despite being dated nearly a year after the first MBD registration, this was supposed to be an attempt to prove that the French version was written first. No, the English contingent didn’t understand that either. As SACEM registration forms require the first few notes of the work, we could see that this had nothing to do with our version.
At this point, MBD received a document stating that Zoulou were suing Mindel, and MBD for defamation, demanding €300,000 compensation from MBD and Mindel individually for this offence alone. This was obviously threatened in order to persuade MBD to leave well alone and call it quits; not a chance and the English contingent was now put in a position where they had to fight a court case to retain their honour.
MBD next set about acquiring affidavits from the Creative Director, the Head of TV and the responsible producer at Griffin Bacal in London; they all stated that David Mindel had been commissioned to write the music and that his piece had been used all over the world. A similar deposition was subsequently obtained from the producer at Griffin Bacal in New York.
Over the next year or so, Mindel and Seys visited Paris several times, sometimes returning somewhat confused. Maitre Schmidt’s heavy workload and the long periods between these meetings meant that many of the details of the case needed to be revisited each time. Still, the Maitre remained supremely confident (once up to speed), so more money changed hands. The case nearly finished up in court at one point, but the French completely changed their story, claiming that, not only had they been the creative base for the worldwide campaign from the start, but also that MBD had simply re-arranged their music with their permission, and therefore all the worldwide royalties should have come to them. Yeah, right!
A different court was suggested (can’t remember why) and this route taken, and eventually the lawyers appeared before the court on more than one occasion. There was always something that Zoulou/Meldrew had been unable to supply to the court, and the case would thus be adjourned for a few more months. We figured that Meldrew and Brossard were stalling, hoping that MBD would eventually give up, but they would not give up. Schmidt elected to hire a musicologist who decided that there was no similarity between the MBD and Meldrew versions of Action Man. More money changed hands.
In April 2005 Mindel and Seys actually attended a court hearing. One spectator they met at the court was a French publisher representing a German writer who had been similarly defrauded by Meldrew and Zoulou. Thierry Brossard attended…a shady, swarthy, rather grubby looking individual who looked like he’d left his caravan and horse outside. I think a shower would be a foreign object to him.
He must have been alarmed to see the both the parties who were suing him in the same court. Schmidt eloquently presented all the facts to the bench. A senior judge, two less senior judges and some junior bods sat on the bench. After Schmidt had used up his ten minutes, the opposition lawyer had his turn. He argued that his clients had written Action Man, that the MBD case was hopeless, but his main argument was that it was ridiculous that MBD had never sought these royalties over the years that the campaign was running, so it was strange that they had suddenly thought of this (they hadn’t, of course); still, this was what he rambled on about. It’s always worth remembering that all French people are fiercely patriotic so the home side will always start with an advantage (last Saturday!). As ever, the case was adjourned for several months while the judges deliberated.
Eventually the court referred the case to another musicologist, a M Spiers. A meeting was set up at Spiers’s office/apartment in Paris. Xavier Nicod from Nota Bene attended as did Brossard and his lawyer plus a representative from SACEM who had brought a massive file…could this contain all Meldrew’s Action Man royalty statements? Mindel and Seys also arrived with Maitre Schmidt much to M Spiers’s approval. MBD’s presence was intended to show how seriously they were taking the matter.
Brossard kept telling a bemused Spiers that the French version had been written first even though all the evidence pointed to the contrary. He then attempted to demonstrate the similarity between two completely different pieces of music. M Spiers said he would compare the two pieces in his own time. Wondering how it could be proved how often each composition had been used, it was eventually agreed that 107 French Action Man films would be acquired (at MBD’s expense) in order for M Spiers to make his comparisons. Spiers then demanded that, if Brossard continued to insist that the Zoulou copyright was written first, then he would be required by the next meeting to supply the original order for the music from DDB, France and invoices from the relevant recording session. The SACEM representative was prepared to divulge the amount of money involved, but Zoulou’s lawyer blocked this, as Meldrew was not present. Another meeting was scheduled for a few weeks later.
All the parties save the SACEM employee attended this second meeting. Zoulou, however, were represented by a different lawyer. Much to Brossard’s horror, M Spiers had found no similarity between Malone’s melody and that of MBD. Brossard said to his ear there was a similarity and that the musical styles were almost identical. Spiers pointed out that as the commercial was for an action toy he wouldn’t have expected a waltz played on an accordion…the British contingent laughed a lot at this. Furthermore, M Spiers had decided that 106 of the 107 films carried the MBD music…more head shaking and arguments. What’s more, Zoulou had been unable to provide evidence that their session for Action Man preceded that of MBD’s. No matter how much Brossard tried to put his case, M Spiers insisted that this judgement would be presented to the court. Things were looking good and an excellent lunch was had.
The next thing to happen was that M Spiers had noticed some other titles on Meldrew's SACEM royalty statements and notified Schmidt who enquired of David Seys if they looked familiar. They did indeed, so it looked, as MBD had always suspected, that Action Man was not the only MBD income that Meldrew and Zoulou had diverted.
Before the court hearing the other side fired their lawyer. Apparently, In France if a judgement is made when a party is not represented, the judgement is not enforceable. This was probably a ruse on the part of the French defendants.
Soon thereafter, it appeared that Mr Meldrew wanted to settle. He first offered MBD the opportunity of recouping its losses through his future SACEM royalties. This was rejected out of hand; that could have taken years.
At around the same time, Maitre Schmidt started proceedings against DDB Paris, stating that they had originally owned Zoulou Music. He also claimed that, as the head of the agency had once been a director of Zoulou and as his brother still owned it, they must be implicated. He claimed that as Thierry Brossard and Victor Meldrew’s e-mail addresses were @DDB.fr, the agency had to be implicated. Everyone had always felt that the best option for getting all the money owed was through the agency. The bad publicity that would follow a court case would do the agency no good whatsoever, and they may wish to settle the matter as soon as possible.
In September 2006 Victor Meldrew, realising he could be charged with a criminal offence, agreed to pay back the sums he fraudulently received; he had already agreed to compensate the aforementioned German composer. The total due from him and Zoulou for Action Man to MBD and its writers is in the region of €180,000, his share around €120K.
Now SACEM gets involved again. Then it transpired that we needed a letter from PRS to say that we could be paid without the money going through them. This, of course, took months. Then SACEM decided that the money would have to go through them even though it already had. Various documents had to be provided to prove that the various parties would be paying tax on the money that Schmidt would pass on; then we needed another letter for the Alliance rather than the PRS. This took so long that we missed one opportunity in court. Eventually the letter was drafted, but we were told one Friday early this year by an Alliance lawyer (that says it all) that it would require approval by a director and, hopefully, she would be able to get back to us around Tuesday of the following week. That was it! Mindel sent an e-mail to the new chief executive of the Alliance:
Dear….
Firstly, please accept my congratulations and sympathy for being appointed head of the most inept organisation on Earth…….
That worked!
A ‘Protocole’ was drawn up. This is a document that is signed by all parties. Meldrew would agree to pay up so long as criminal proceeding were not intended, his name (not Meldrew) would not be used in relation to this case (he had another job he didn’t want to lose by this time), and there would be no further claims against him regarding Action Man. Each page had to be initialled, a 15-word declaration written by everyone and then signed. There were 12 copies of a 27-page document, a two-page letter and a one-page letter; i.e. 360 pages, half a rain forest.
Meldrew has now re-paid SACEM. Hopefully, they will soon pay Schmidt and then he will pay us…..one day. The ‘Protocole’ will be shown to Brossard and DDB when they go back to court. They will be surprised, we want to be there. They will resist, but we will see it through, demanding damages, costs and interest. Then we start working on recouping the earnings on any other titles that have been wrongly accredited to Meldrew. What fun!
16-10-08
