Q It Up: Can I use Lady Gaga's new song under my commercial? - Part 1

q-it-up-logo2This Q It Up does not intend to determine exactly what the copyright laws say you can and cannot do. We are simply looking for an account of what producers perceive the laws to be, and for stories about infringements that resulted in legal action. The responses below are not “the law” as reported by Radio And Production. While it’s pretty obvious what you can and cannot do, if you and your station/company have a question or concern about the use of copyrighted music under your productions, you should get your definitive answer from a lawyer.

Q It Up: What is your understanding of the laws regarding the use of unlicensed, copyrighted music under commercials and promos, and how do you deal with these requests? In markets small to large, some people, even in management levels, believe they have the right to use music from their playlist under commercials and promos because they pay ASCAP/BMI for Performance Rights. Many have never heard of Synchronization Rights. But it’s the gray area that gets most debated. Is it okay for clubs to use popular music under their spots? Has a club or station ever been sued for doing so? Is it okay for stations to use songs from their playlist under a promo that has nothing to do with the artist? Has a station ever been sued for doing so? Do you know of any lawsuits involving copyright infringement we can share with clients, sales and management to use as examples of why it’s best to obey the law? Is there any such thing as a “7 second rule” allowing legal use of up to seven seconds of copyrighted music? To our non-US readers, most of what we’ve printed in RAP on this subject has come from the perspective of United States laws and practices. How is this situation dealt with in your country? Indie producers, are things any different for you?

Andrew Frame [andrew[at]bafsoundworks.com], BAFsoundworks, Lehigh Acres, Florida: It’s been pretty well established that you can’t use music or movie/television clips in commercials, and technically you’re not supposed to use them in promos, but I only know of one company that’s been popped for using material in a promo, and it was in conjunction with another violation. So, the promo was a side issue, but one that was enforced.

We don’t do bar spots, so we don’t run into the issue of using songs or beatmixes there.

The “seven-second rule,” along with “fair-use” is people attempting to skirt the law. Most don’t know that both excuses are baloney; they’re only repeating what they’ve been told. Over the years, we’ve built a small folder of lawyers’ comments and case histories of people that decided to ignore copyright and have found themselves sued. Reviewing one or two of those pages is usually enough to bring the issue to a close with any skeptical customers.

We’ve never lost any business for saying “no” over copyright. I’ve put our agency customers on the hot seat with their clients (who wanted to use a song), but I remind them that they, their client, and I could be sued, and then I read them some of the case study info I have.

I have one non-USA customer that is in a country that doesn’t have any kind of reciprocal arrangement for copyright with the United States, and they did go that route when I was asked to produce a spot with a pop song as the bed.

My answer to US stations would be built around the laws we mutually had to follow, lest we both find envelopes with subpoenas in them. For my customer, I reminded them that although they aren’t a signatory to US copyright, I was, as a US citizen. So, the act of manufacturing the production could very well leave me liable for a lawsuit.

To their credit, they understood, and had us provide the voiceover and non-musical production elements in a pre-mix, and they added the song to the pre-mix in their production room. I discussed it with the GM, and we came to an agreement that it wouldn’t happen again - her decision.

In non-broadcast situations (i.e., message-on-hold, kiosks, industrial videos, etc.), we’ve managed to steer clear of the infringement waters by being ready with suggestions for alternatives to the material the customer had wanted. Once we explain to them the laws, and how it could affect them, we add, “Look, it’s wrong. It’s stealing. Let’s just not go there.” To date, we haven’t had anyone push the issue. At that point we’re told to “just make us something good.”

As a freelancer, you have to be willing to say “no” sometimes and handle the fallout. It’s the price of the freedom of working for yourself.

Anonymous: Canadian law very much mirrors US copyright law. It’s very simple: you cannot use your playlist music for commercial purposes. There is no 30s rule, 7s rule, or 3s rule. It should not be done, except with the express written consent of the song’s ‘rights’ owners. So if a commercial client asks for a specific song, i.e., a country bar asks to use Toby Keith’s “I Love This Bar” as background… not gonna happen. We even had a client using “I Love This Bar” on their website for promotional purposes, and we kindly suggested they drop it.

 Can’t say we’ve ever used songs for a promotional campaign that didn’t relate to the promotion. Obviously we use Kenny Chesney songs for a Kenny Chesney concert promo. But we’ve never used, say, “Beer In Mexico” for a Mexico trip giveaway (not that I can recall anyway... maybe too much beer).

Have we done parody songs “without permission” and crossed that fine line? Probably. Have we ever been sued? Nope. Not even a cease and desist. Usually the reason we can get away with it, is that quite often markets are so isolated, the odds of a singer, writer, producer, or musician hearing their song being used “without permission” are slim to none. I mean the odds of a British comedy troop hearing us change the lyrics to one of their songs to suit one of our contest promotions... astronomical! So we take the chance and have some fun.

In another life, our Creative Director used the “Sesame Street Theme” for a client. Believe it or not, he did get a phone call from a legal firm in Seattle asking the radio station to cease and desist using the theme for commercial purposes, which they did immediately.

At the end of the day, what we believe to be acceptable is irrelevant. The question is what’s right in the context of the law.

The real issue - money. Everyone involved in the production of a song wants to get paid, as they every right to. Follow the money.

As an aside, Radio is an amazing distribution system for the artists we play. Can you imagine what would happen to the music industry, if every music driven radio station in North America (satellite and digital included) suddenly closed its doors at midnight tonight? The devastation would be enormous on so many levels. Imagine the task of getting artist exposure without radio. But, I digress.

Brian Wilson [wizman440[at]hotmail.com], Citadel Media, Dallas, Texas: In the Dallas market we used to accommodate the bars and sales department and use contemporary music in their commercials, as long as it wasn’t in our playlist. That all changed for me in 1989 when I was CSD at Pirate Radio (KQLZ 100.3) in Los Angeles. When we showed up on the dial, ALL decent imaging libraries were locked up in the market, and we made do with what we could create from scratch or use obscure instrumentals. We had an extended remix of Gino Vanelli’s “Black Cars” with :60 of vocal free music that we placed in a bar spot. Not long afterwards, Westwood One’s legal department received a cease-and-desist from Screen Gems/EMI for unlicensed use of their copyrighted music in the commercial. Desist or pay them $25,000. I was in deep doo-doo! Screen Gems was only ten miles from our studios; it’s no wonder we got caught. An irate lady from Screen Gems called me and was sputtering, “What were you thinking? On what planet is it okay to STEAL our music?” I told her that this is common in every market in America, but not a good idea to do it in Los Angeles!

Anonymous: I’m going to speak directly to the point of commercials and promos! First, let’s look at commercials.

I work in a small market yet I work for one of the BIG companies. There is blatant disregard for copyright infringement at all of our competitors when it comes to using copyrighted music in commercials, and our competitors could care less about the law. They also train our clients to not care about breaking the law either since I hear most often “We’re in such a small market, who will notice?” Copyright law is simple to understand once you know the truth.

The copyright law simply states that anything that is copyrighted must be compensated or have approval in “fair use”. What exactly does fair use mean? Bottom line, if you are going to profit from the use of the material, you need permission and somebody MUST get paid, namely the copyright holder which could be the artist, record company, publisher, etc.

Our policy here is that we will NOT produce anything with copyrighted material without express documentation or proof that it is acceptable to utilize the material in the context of “fair use.” Again, if you are going to make money, you need to pay to play! However, we place our own property in danger when we still run commercials produced elsewhere that contain copyrighted material, and we know for a fact there is no permission granted, or lack the proof altogether. This business decision is one of economics because refusing to run the spot, means dollars out the door. This is NOT a gray area. There is no length that is acceptable to use. The 7 second rule is a MYTH, not LAW! The law states “fair use.” This means ANY length of audio is liable, ANY LENGTH! I REPEAT, ANY LENGTH! Just like Vanilla Ice tried to tell the judge that one beat was changed -- the “fair use” context rules!

Therefore, play it safe and be smart. If it is copyrighted, don’t use it unless you have permission or have compensated the copyright holder! PERIOD!

Let me make one point here, there is ONE exception that is legal. IF the commercial or promo is about a concert coming up or event where an artist WILL perform, THAT ARTIST’S MATERIAL MAY BE USED since the artist will be performing. This is because the copyright holder will directly benefit or profit from the use and therefore it is implied fair use since the artist you are utilizing is the artist being advertised and they will directly benefit from the performance. OTHERWISE, you must pay to play.

Why is this so difficult to understand? Simply put, because very young and often inexperienced people are hired at small operations that have no knowledge of the law and take no time to learn the law. Knowledge is power and the penalties for copyright infringement CAN COST YOUR BROADCAST LICENSE, FINES, and YOUR JOB! I have also seen publishers go after the client who wanted the spot since they are the ones who originated the idea of the copyrighted material for their commercial. This applies to Television themes, sound effects, college fight songs, anything of copyright -- you MUST consider fair use.

Promos in many people’s minds seem to be exclusive of this. WRONG AGAIN! Promos are also in the fair use circumstance to promote a station event, contest, or station element. Again, use of copyrighted material is ILLEGAL without compensation or permission, only the artist exception above will save you. If you will profit from the use of the material, obey the law.

For more information on the correct legalities of copyright law, NOT a Wikipedia entry, simply go to www.copyright.gov/fls/fl102.html, or contact the Copyright office in D.C. if you have questions at: U.S. Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000. (202) 707-3000.

Anonymous in Canada: Roughly 17 years ago, my predecessor wrote & performed a piece of music for a commercial with a similar melody to the song Respect. The only part of the music bed that resembled the original song was the chorus in the spot, and it was less than 7 seconds of sing/music. It’s important to note that some of the notes had been changed, so it was not identical to the original (and of course the words were changed).

The station got a call from a lawyer representing the publishing rights owner. Ultimately, the case went to court. The station argued that the music bed, while similar, was not the exact same notes, was not very long, etc., etc.

 The judge said it was simple -- he would listen to both versions and make a determination. After listening he ruled that the music bed for the commercial was clearly an attempt to rip off the Artist’s music, to capitalize on the popularity of the hit song. I can’t remember what the penalty was, but the judge awarded the plaintiff many thousands (tens of thousands?) of dollars. I can’t recall how long the spot was on the air - maybe a couple of months at most - small advertiser.

Anonymous: I suppose if you follow the letter of the law, you couldn’t use the new Lady Gaga song in a spot to sell tickets for the upcoming Lady Gaga concert. However, artists and their legal pit bulls (not the artist known as Pit-bull) are rarely that narrow minded. Yes, they’ll sue you for everything if you use the latest Gaga track to sell Chevy’s for the local Chevy dealer who wants to show he’s hip with the kids. They are less inclined to sue if you are using the latest Gaga track as an example of what you play on your station. The Artist and their record company weasels LIKE it when you play their songs. a) they get royalties on played songs, and b) it’s exposure that may make someone want to download the song off iTunes or buy the whole CD which they will again get paid for (do people still buy CD’s?). The main and obvious difference is you getting paid for the commercial, and you are not getting paid for a station promo. If the promo has nothing to do with the artist, or using the music as an example of the station, you are veering towards having an issue. I wouldn’t be doing it. 7 second rule?? If they can win a lawsuit for stealing a sample used in another song, they aren’t going to stop and time it out. If you got paid and used it without license you are wide open for litigation.

So what do I do when the Rep comes bouncing in saying the client wants to use the latest Gaga song in their spot? Thankfully this hasn’t happened in a while, as Reps understand the concept of being named in a lawsuit and losing money and clients. Those that really want it can follow up with a licensing agency and negotiate the rate for rights for 13 weeks. Once they see the number at the bottom of the page, it does tend to put off even the most insistent client. I’m not doing anything for that client with that song until I have a signed copy of their licensing agreement.

Why be so cautious about this? Lawsuits do happen. It wasn’t a music artist but a certain “performer” has copyrighted his trademark phrase. He has the means to find it in streaming audio. One of the stations in a major chain found out how effective he is at this… twice. Legal says that all you can do when he sends the invoice is to find the money and pay him. The other one I’ve heard over and over again, was a station in upper New York state using “See You In September” in a car spot. One of the song’s writers (or friend of the writer), heard the spot while on vacation in the Thousand Islands. Two phone calls, and a lawsuit (won by the writer) was born. Thanks to the internet and “friends” interested in finders fee’s from the attorneys, I’m surprised that these lawsuits don’t happen more often.

Dan O’Day [DANODAY[at]danoday.com]: In markets small to large, some people, even in management levels, believe they have the right to use music from their playlist under commercials and promos because they pay ASCAP/BMI for Performance Rights.

Wrong. They have the right to play the music as part of their programming. They do not have the right to use it as part of a recorded commercial.

Is it okay for clubs to use popular music under their spots?

No. Hopefully they do pay license fees that allow them to play the music in their clubs, but those fees are not the same as and not include a license to use them in commercials.

Has a club or station ever been sued for doing so?

I don’t know if a club has, but MANY stations have.

Is it okay for stations to use songs from their playlist under a promo that has nothing to do with the artist?

If it’s part of the station’s programming (and they’ve paid a performance license fee), yes. If it’s for a commercial (which includes a “promo” for a commercial OR a non-commercial event), no.

Do you know of any lawsuits involving copyright infringement we can share with clients, sales and management to use as examples of why it¹s best to obey the law?

There are hundreds. If your client, sales staff and/or management doesn’t understand why it’s best to obey the law... well, that’s a pretty sad commentary about the importance they place on honesty, isn’t it?

But if “you shouldn’t break the law because respectable businesses and respectable people don’t break the law” isn’t enough, you can point out that the legal doctrine of “Strict Liability” adheres to copyright infringements:

“I didn’t know...” won’t help you in court.

Everyone involved in the violation (ad agency, producer, client, radio station) can be sued for substantial financial damages. And if they think, “The worst that can happen is we’ll get a Cease & Desist order”: A C&D is a courtesy, not a requirement. The first notice you receive might be a summons to respond to a lawsuit.

Is there any such thing as a “7 second rule” allowing legal use of up to seven seconds of copyrighted music?

No. Never was. It’s an urban legend. One of the most famous music copyright lawsuits was filed over 5 notes of a song.

If you want to mention my book (you don’t have to), it’s THE ULTIMATE, NON-LAWYER¹S GUIDE TO COPYRIGHT INFRINGEMENT IN RADIO COMMERCIALS - And How To Avoid It. danoday.com/copyright.

Stay tuned for more fascinating responses and stories on this subject when we bring you Part 2 next month!

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