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?
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?
Rewrite the lyrics of the song to fit the commercial message?
Use only an instrumental version of the song?
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?
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?
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?
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.
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.