John Pellegrini writes:

Your series of articles about when it’s legal to use copyrighted music in radio commercials got me thinking about something I had been told about music use in commercials that always bothered me.

There was a client at a previous radio group I worked for who insisted on having the Bee Gees’ “Stayin Alive” as his commercial music bed. I told the client that it could not be done because of copyright laws.

The client made the usual argument (he’s been using it for years, no other station in town objected to it, etc… ad nauseum…), so the sales rep for the client took it up with the group GM. To my surprise, the GM said to produce the spot exactly the way the client wanted it, with the song.

His reasoning was that radio stations are held harmless for anything an advertiser does in their commercial. In other words, since stations cannot be held responsible for claims made by advertisers in their commercial messages, this also includes the music the client chooses to have in their commercial.

His stated belief was even if the station produced the commercial with the music bed, it’s the client’s responsibility to deal with copyright problems, not the radio station’s. He also said that this fact was backed up by the group owner’s corporate lawyer.

How that GM managed to contact the corporate lawyer in the less than 10 minutes between when he was made aware of the situation and when he spoke to me about it was one of the great mysteries of that year, but I digress.

Mind you, if anything actually was done in terms of legal action against the station, I have no doubt that the GM would have blamed me and thrown me under the bus for it. He was that kind of special guy.

Nevertheless, this does raise a point worth discussing. Does my former GM (and the alleged corporate lawyer he allegedly talked to) have any legal standing on this concept? Or is it just one more stellar example of why I am so glad I’m no longer affiliated with that organization?

As always, I’m not qualified to give legal advice.

But after having conducted exhaustive research into the topic, my legal opinion is:

Your former GM is an idiot.

I’ve never before heard the “our station can’t be held responsible for anything an advertiser says or does in a commercial” claim.

Writing about broadcasters’ responsibilities vis-a-vis political advertising, the telecommunications law firm of Fletcher, Heald & Hildreth, P.L.C. says:

“That’s so even if the content could, in a non-political context, result in liability for the broadcaster – for example, if the ad contains defamatory statements or obvious untruths, or if it infringes on somebody’s intellectual property interests…”

My layman’s interpretation of the above sentence:

Your former GM is an idiot.

As we’ve explained, copyright infringement adheres to what is known as “strict liability.”

Translation: Your former GM’s assertion that “it’s the client’s responsibility to deal with copyright problems, not the radio station’s” is incorrect.

I, too, am impressed by his ability to get a formal opinion from the group owner’s corporate attorney in just 10 minutes.

Reminds me of the radio creative director whose program director insisted it was okay to use a hit song in a commercial: “I checked with the FCC.”

He checked with the FCC about intellectual property laws? Probably he should’ve played it safe by getting a second opinion from the FDA.

Or maybe from AAA.

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Our discussion of radio commercials that infringe upon copyrighted songs prompted emails from two Loyal Readers.

Tim Burt writes:

“True story… a local jeweler is using a copyrighted song in their commercials.

“It is a very obscure song by a relatively unknown artist. Once I determine this would be subject to copyright infringement, I asked for — AND RECEIVED — a copy of the agreement for the licensing.

“Needless to say, I was stunned. So while it is very rare, this paperwork can be obtained.”

The second Loyal Reader sent me this spot that apparently is airing in a small market in Michigan.

While Tim’s example of a local jeweler’s ad involved a song by “a relatively unknown artist,” this radio advertisement uses a very well-known song by a very well-known artist:


I’m amazed that a local burger joint was able to afford a license to use Meghan Trainor’s song.

I’m also surprised Meghan licensed it to them. Perhaps she’s old friends with the owners…

Or maybe she’s just crazy about burgers, pizza and fish fries. (I have no idea what fish fries are, and I’m not sure I want to find out.)

But somehow they must’ve obtained a license. I’m told this commercial is airing on several radio stations in the area, and of course those stations wouldn’t have agreed to broadcast a commercial that otherwise would appear to be a clear copyright violation.

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RADIO CONCERT COMMERCIALS & COPYRIGHT LAW

by Dan O'Day on April 14, 2015

My recent list of a bunch of things that are not allowed in a radio commercial without first obtaining permission of the copyright holder seems to have generated a lot of attention.

Some people asked me to clarify this Q&A:

Q:  Is it legal to air a commercial for a musical performer’s local concert, using recorded examples of his/her music {without obtaining a license to do so}?

Answer: I know you won’t like this answer, but…No.

Jay Murphy wrote, referring to the “using music to advertise a concert”:

“I must confess I was somewhat troubled after reading your letter. No one likes to hear they’re breaking the law. I’ve been in this business long enough to know where the lines are… or at least I thought I did.  All of your examples were obvious to me EXCEPT this one.

“Here’s the situation. After a conversation with my production director on this very topic, I produced an ad for an upcoming concert event.  The ad is being underwritten by the major sponsor and has the full knowledge and blessing of the promoter who’s booking the acts. I do not doubt what you say is true but I need to know then…When exactly, is a concert ad ever legal?”

As it relates to copyright law, a concert ad is legal when the copyright holder(s) give permission to use the specific pieces of music in the commercial.

A license doesn’t have to be purchased; it just needs to be granted.

In the example Jay gives, “The sponsor has the full knowledge and blessing of the promoter who’s booking the acts.

If the promoter has been given authority (by the copyright holders) to authorize such usage, there should be no problem.

Steve Macaulay wrote:

“Many times in our market, a local musician or their promoter will buy airtime to promote their music and/or performance. They supply original recordings of the artist’s original song. I think that constitutes granting permission by the owner of the music.”

If a musician buys airtime to promote his music, which he provides to the radio station for use in the commercial, clearly he is granting the station permission to air his copyrighted material.

But if the musician owns the copyright to the performance but not to the composition, it’s a mistake to assume that therefore it’s okay to use, in a commercial, whatever recording he gives you.

Let’s say Paul Simon is giving a concert in your market. Paul says to your radio station, “I want the commercials to include The Sounds of Silence and also Graceland.”

Sure, Paul, no problem.

On the other hand, one of the many Paul Simon impersonators is performing in your market, doing a Paul Simon tribute show.

“Paal Sighmon” says to your radio station, “I want the commercials to include my impeccable renditions of The Sounds of Silence and also Graceland.”

Most likely he owns his own performance rights, so he can grant you a license to use them.

But if neither Paul Simon nor his representatives have granted a license to use those songs in a commercial? Uh-uh.

If Paal uses your radio station to advertise his appearance using his renditions of those two songs, without having been granted permission to do so, both Paal and your radio station might well have some legal ’splainin’ to do.

Terry Stevens wrote:

“This one concerns me:

“Air a commercial for a musical performer’s local concert, using recorded examples of his/her music? Answer: I know you won’t like this answer, but…No.”

“If the promoter or venue putting on the show is paying for the spot and their job is to promote the artist in question, wouldn’t permission from the artist/rights holder to use his/her music in the spot for the show be contained in the contract signed with the promoter?”

Yes, I think that would be quite likely. Especially if it’s a well-established promoter.

Next: I’ll share with you a current example of a radio spot that may or may not constitute copyright infringement. You can be the judge….

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SAYING “DOLLARS” IN A RADIO COMMERCIAL

by Dan O'Day on April 12, 2015

radio commercial copywriting tipsFirst, let’s listen to part of a radio commercial that recently aired in Los Angeles.


Generations of radio copywriters have been told never to say “dollars” when referring to the price of an advertised item.

The rationale behind that dictum is, “You don’t want people to think about having to spend money” to acquire whatever is being sold.

Apparently you’re supposed to hope the listener will assume the furniture sells for 300 pesos, not dollars.

But never say “dollars.”

Hogwash.

If you want to communicate with people, you want to speak their language.

In real life, there are occasions when real people typically don’t say “dollars.”

“How much is that package of baloney?”

“Lessee…Four seventy-nine.”

Saying “four dollars and seventy-nine cents” would seem a bit odd.

In a supermarket ad that boasts, “Hormel Pigs Feet, just two eighty-eight” — you don’t say “two dollars and 88 cents” because that’s not what real people say.

If you don’t believe me, just ask a pigs feet consumer.

On the other hand, if someone asks you how much you pay for your new cloud-based computer backup service and you reply, “Oh, it’s only 5 a month,” the other person will react with a quizzical look.

“5 a month? Um, you mean 5 dollars?”

Ironically, self-consciously avoiding the word “dollars” actually draws attention to the cost.

When you say the advertised furniture sells “for 300,” you force the listener say “dollars” sub-vocally. (Sub-vocally is a very impressive way of saying, “To themselves, silently.”)

Because no one says “the furniture costs three hundred,” the psychological principle of closure takes over.

Closure is the natural tendency of the human mind to impose order upon chaos.

When your brain hears “the furniture costs three hundred,” it wonders, “300 what???

An instant later it replies, sub-vocally, “Oh, 300 dollars. Okay, fine. Let’s move along now.”

The best reason for avoiding “dollars” in a commercial is in a situation where people would be unlikely to say it in real life.

“Hey, you go that car wash down the block, right? What do they charge for a basic wash & wax, with none of their overpriced extras included?”

“Umm…Nine ninety-five, I think.”

In that situation, you’d be unlikely to say, “Umm…Nine dollars and ninety-five cents.”

On occasion, you can minimize the financial cost by employing slang when appropriate:

“…for just 30 bucks.”

or

“We’ll drive to your house; install your state-of-the-art entertainment system; install this amazing home security system that lets you see everything that’s happening anywhere in your house from anywhere in the world, simply by glancing at your new iWatch, which we’re also going to give you; and replace that unsightly firetrap that sits atop your home with a brand new slate roof…

…all for less than 3 grand.”
 

In that case, “3 grand” probably would be fine.

So would “three thousand dollars.”

But “all for less than three thousand” would force listeners to fill in the blank for themselves: “Huh? Oh, three thousand dollars. Why didn’t they just say that??”

This Commercial Wanted Listeners to Think “Dollars”

Let’s return to this radio commercial.

Clearly the copywriter has been trained to “minimize” the apparent price by never, ever saying “dollars.”

But in this spot, they’re talking about how much money the listener will save.

Don’t you think they’d want to emphasize the actual dollar amount that listeners can save during their sale?

Summing Up Today’s Genius Radio Copywriting Lesson

Speak to your listeners in the language they use and understand.

In fact, this is so valuable that I’m going to call this:

My One Million Copywriting Tip

Get quick inspiration for fresh radio commercials.

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This appeared in the latest issue of my
Radio Advertising Letter.

It generated so much reader response that I’ve decided to reprint it here.

Years ago, I wrote my first e-book because I kept getting the same phone call, week after week:

“Would you please settle an argument…?”

That’s all I needed to hear; I knew that once again a radio station was grappling with the question of what’s legal and what’s illegal when it comes to using copyrighted music in commercials.

In this issue, I’ll simply tell you what’s permissible and what’s not, usually without going into the details of “why.”

(If I included the “why” for each one, it would require…Well, it would require a book.)

The type of copyrighted music we’re discussing is commercially marketed music.

If your station uses a music production library, that library is copyrighted. You may have purchased a license to use it “royalty free,” but it’s still copyrighted.

So to streamline this overview, let’s assume we’re talking about popular songs. The same laws apply to unpopular songs, but most commonly an advertiser wants to use a well-known, copyrighted song in a commercial.

“Copyrighted music” also refers to copyrighted performances. If you want to use a recording, both the song and the performance are copyrighted.

Is It Legal To…

Use a copyrighted song in a radio commercial without obtaining a license to do so?

Answer: No.

What if my radio station already pays BMI/ASCAP fees? Won’t that make it okay?

Answer: No. Your station pays those fees for the right to broadcast the songs as part of your programming. That does not include using them in commercials.

Have someone record their own rendition of the song, thereby creating a new recording?

Answer: No.

Rewrite the lyrics of the song to fit the commercial message?

Answer: No.

Use only an instrumental version of the song?

Answer: No.

Air a commercial for a nightclub that includes copyrighted music that represents the types of music the club plays? (After all, the club itself pays for a license fee to play the music in the club…)

Answer: No. They are paying for a license to play the music in their establishment. They are not paying for a broadcast license.

Air a commercial for a musical performer’s local concert, using recorded examples of his/her music?

Answer: I know you won’t like this answer, but…No.

Record a TV program’s theme music and play it on your airwaves for regular use in a program or feature?

Answer: No.

Take music that has been licensed by a national advertiser for a national campaign and use it to create a recorded commercial for a local affiliate or franchisee of that national advertiser?

Answer: No. If Ford Motors pays to use a song in its national campaign, that doesn’t give your local Ford dealer the right to use it in their own advertising.

Does “Fair Use” mean if we don’t make money from it, it’s okay to broadcast copyrighted music? For example, if we’re a non-commercial station or if we’re running a spot for a non-profit organization?

Answer: No. Noncom stations and nonprofit organizations are subject to the same rules as everyone else.

Is it legal if we use no more than 7 seconds of the song?

Answer: No. Whoever told you about the “7-second rule” probably is a big believer in Bigfoot and in organ transplants being conducted on innocent victims by space aliens.

Is it legal to use a copyrighted song in a commercial if other stations in my market are using it without having obtained a license?

Answer: And if all the other stations in your market jumped off a cliff….? No.

If the client told us it was okay to use the music, are we legally protected?

Answer: No.

If the client provides you with documentation demonstrating that a license has been obtained, that’s different.

But when’s the last time a client was able to show you such documentation?

If we receive the finished commercial from an ad agency or production house or another radio station and it turns out the commercial violates someone’s copyright, are we safe from legal action?

Answer: No.

Copyright law adheres to what is known as “strict liability.” That means, among other things:

A) Any party that is involved in infringing a copyright owner’s rights is liable.

B) “I didn’t know” doesn’t legally protect you. Under Strict Liability, it doesn’t matter what your intent was. If you accidentally commit a copyright violation, you still can be held liable for damages.

I’ve been told the worst that can happen if we’re caught is we’ll get a Cease and Desist order from the copyright holder, and if that happens we’ll just stop doing it.

Answer:

A) The question shouldn’t be “what can we get away with?”

That’s like saying, “If I can break into my neighbors’ house and steal their valuables without getting caught, is it okay?”

B) A victim of copyright infringement isn’t required to send you a Cease and Desist order.

Their first contact with you might be in the form of a Demand Letter, specifying a financial penalty that must be paid if you don’t want to face a lawsuit.

Most Radio People Want To Do The Right Thing.
A Few Simply Don’t Care.

One station’s creative director carefully explained to his market manager why acceding to a client’s request to include a popular song in their local commercial would be illegal.

“I’m willing to take my chances,” the manager replied.

Think about what that guy was saying: “I’m willing to break the law and steal from someone, because I think there’s a good chance I won’t be caught.”

Someone was offering to pay him, and he figured he probably wouldn’t get caught…so he was quite willing to commit an illegal act.

If “not breaking the law” didn’t dissuade him, perhaps the principle of “Strict Liability” should have.

You see, he worked for a very large radio company, which will remain anonymous.

Let’s just say it’s the biggest radio company in the world, and recently it changed its name to iHeart Media.

That guy wasn’t taking just his chances. Everyone involved in a violation of someone’s copyright can be held liable — including the huge radio company that owned this guy’s cluster…and that had very deep pockets.

Here’s my e-book about using copyrighted music in radio commercials.

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