"You Sir, Would Be An Infringer!"

by Marshall Such

Those were the words out of my partner, Mike Fuller's weasely L.A. attorney when he first heard we were proposing to use movie drops. After he had huffed and puffed for about $62.50, he calmed down enough to hear us out and to fill us in on the legalities of using movie and TV bits. And for all of you, especially Flip Michaels, Radio & Production's "Cheat Sheet" guy, here's the skinny!

You may not use any copyrighted material without the express written consent of the National Football League, NORML, or the copyright owner of the piece you're planning on ripping off. That's a period.

There are, of course, some notable exceptions. Since your station pays ASCAP and BMI ungodly sums of money every year, you can use bits that appear on CDs -- soundtracks for example -- as long as the material on the CD (or cassette or whatever) is licensed through ASCAP or BMI. So far so good? Good!

You can also use Public Domain material as well. And the cool thing about the word "Public Domain" is that it says it all -- it's for public use. Basically, PD material is stuff that was never originally copyrighted, or the copyright expired on the work and wasn't renewed. A good example is movie trailers. Up until about 1976, movie studios didn't copyright trailers. (You'll notice the "©" on trailers these days.) However, that doesn't mean that the material contained in the trailer isn't under copyright.

So you're asking yourself, "How do you Bandito Potatoistas get around selling the movie drops you sell?" The answer is simple: We get you guys to take the risk. But we have done a lot of research into the stuff we sell, and we believe the clips are pretty squeaky clean. We've scoured the world to find the clips we've got, and can say with a certain amount of certainty (from the Department of Redundancy Department): The Radio Potato movie drops, to the best of our knowledge, are Public Domain.

But here's the sticky wicket, the prickly pear, the Catch 22: There is still an assumed risk in using even Public Domain clips. To make a current analogy: If you were using a drop from "Last Action Hero" where Arnold says one of his famous Schwartenaggerisms, and you geni (plural for genius) decide to have your station voice say, "The movie sucked, but we don't. 97-9, K-WUS," I'm guessing that Arnie and Major Motion Picture Company would get pissed.

On the other hand (would someone cue up "Fiddler on the Roof"?), I've never heard of even one radio station ever being dragged over the coals for using a copyrighted movie drop or TV clip.

Why? This is only speculation (and probably common sense), but I'd guess that if I were a Major Studio I'd want my product associated with "the hip, happenin' jive music you kids are playing today." I mean, wouldn't you be flattered if you were the studio that released "The Graduate" and you heard a promo with Dustin Hoffman saying, "Mrs. Robinson, you're trying to seduce me...aren't you?" And the station voice says, "You bet we are. Oldies 93." Then you hit into S&G with "Mrs. Robinson."

Yet, at the same time, if I were the same Major Studio ferret, and I heard the same Dustin Hoffman bit followed by, "You bet we are. At Acme Motors we're seducing everyone with big savings going on this week...," I'd be on the phone to probably the same squirrelly attorney first mentioned above screaming, "Sue the bastards" at the top of my lungs. As I've said before and I'll say again: Selling a radio station's positioning ain't like selling Big Macs."

But does using drops for radio positioning and not for spots change the law? Nope. But it would be wonderful if 20th Century Fox, Columbia, and Paramount sent a memo to all radio stations begging us to use clips from their films. And if frogs had wings, they wouldn't bump their butts too much when they jumped.

The bottom line is this: You guys are going to continue taping "Beavis & Butthead," "Leave It to Beaver," (and Butthead?) and a jillion other sources to come up with creative positioning ideas for your stations. And chances are, no one in Hollywood is going to ring you up with a cease and desist order. But you still want a rationale to salve your conscience? Call it "limited creative sampling" or "historical entertainment archiving." But the truth is: "Sirs, you are infringers."♦