Tips & Techniques: Where the Hell Did You Get That Music -- Part II

Last month, John Pellegrini gave us some tips on using classical music in production. John later received a call from Alain Leroux, President of Pro Music, Inc., a company that sells production libraries mainly to the A/V, TV and film industries. John then wrote this follow-up for us:

Boy, do I have egg on my face. I go and take the time to write about the virtues of using classical music for your production; then I found out that if you do, there's a very good chance you could wind up with a major lawsuit on your hands!

My source is Mr. Alain Leroux, President of Pro Music Inc.. This is one of the licensing companies for classical music. Mr. Leroux is a very nice fellow who was not at all threatening, as some in this business can tend to be, and we had an informative chat on the workings of music licensing. He cleared up a lot of misconceptions I had, and I thought I would pass them on.

The big point he has is that while many classical pieces may be in the "public domain," that does not mean there is no licensing fee. The performers (i.e. orchestras, conductors, soloists, etc.), as well as the publishers who hold the rights, and the arrangers, all get paid whenever their performances are used. And, they definitely demand the right to select how and where their performance is used. Also, just because a composer is dead doesn't necessarily mean their works are public domain. Example: United Airlines paid a fortune to the Gershwin Estate to use Rhapsody In Blue for their commercial campaigns.

Another point Mr. Leroux mentioned is that your BMI or ASCAP license only covers the "performance of the music," which includes your station's broadcast of the recording. But, this specifically does not include using the music for commercials or other programming that would constitute "endorsement" or association of the music with a product.

Also, since many composers are foreign, you could end up with foreign lawsuits on your hands as well. Not that each foreign country has spies in every town listening for this type of thing, but if your spot happens to get some wide scale attention, say, winning an award, you could find yourself in some hot water. The basic fine starts at around $20,000, and, depending upon the infraction and damage assessment, you could wind up with millions of bucks in penalties and your station out of business. Plus, if you think copyright laws in this country are confusing, wait till some foreign government gets involved.

How seriously should this be taken? Well, let's say you use a recording of Beethoven's 9th Symphony performed by The Chicago Symphony with Sir Georg Solti conducting. All it would take is one person associated with the symphony to hear that spot to get the ball rolling. Perhaps he or she might be on vacation in your area. (Most symphony orchestras are very large organizations.) You could end up with legal suits in America, Germany (Beethoven's homeland), and England (Sir Georg Solti's country of citizenship). I realize this is a bit far-fetched sounding, but the possibilities exist nonetheless. Forewarned is forearmed.

Pro Music, Inc. supplies classical music for production. Normally, the uses must be cleared by the composer, the composer's estate, or the publishing companies, along with the performers involved, so the fees are double what they would be. Pro Music, Inc. has their own performances of these pieces already available, like other production libraries, so the performance fee is included.

There are all kinds of other complicated legalities involved, and I don't have either the education or the expertise to get through all of it. The basic summation is that using classical music in commercials or other production is illegal (by Act of Congress) and could result in you getting into a load of trouble. I sure am glad I wrote the article recommending it now! I am also extremely grateful to Mr. Leroux for being so helpful in clearing up all the misunderstandings I had.

Perhaps you can get away with it, but it's better to know what might happen to you if you're caught, and the lawyers involved decide it's not as innocent as you might like them to think. All composers and publishers have international protection of the use of their music, and many of them have definite orders as to who can use it, and how it is to be used. Anyhow, sorry for the wrong info last time, and I hope this clears up some misconceptions. As they say, ignorance of the law is no excuse, and what you don't know can hurt you. If you need more info, call Pro Music, Inc. at 305-776-2070. 

Editor's Note: This is a box we've opened before, and we appreciate all the input we can get, including Mr. Leroux's. But the whole issue still seems to be in a gray area. We have only heard warnings of this type from station lawyers (it's their job) and production library companies (they stand to benefit if we don't use music "illegally"). We have never heard of anybody (with the exception of production library companies) suing a radio station for illegally using their music under a spot or promo. If anyone has a story about THAT, we'd like to hear it, research it, and publish it. And can you imagine performers and composers suing a radio station one day, then sending their reps in the next day to beg the station to play their music?

This law apparently means that if Michael Jackson is going to make an appearance at a club in your town, and your station is promoting the event, you CANNOT use ANY Michael Jackson music in the promo without going through what must be TONS of paperwork and FEES before you do it! By then, MJ will have come and gone! And how many times do you think you can tell your PD, "No, I WON'T use their music in the promo" before he shows you the door?

Finally, where exactly would the music industry be without radio? How many of these music publishers and record companies would even exist without us? While their artists may be their life blood, we are the veins the blood flows in. Without us, they have concert tours pushing unexposed music, and that's it! The problem may not be with radio stations using the music, the problem may exist in the laws themselves.

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