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Using Copyrighted Music in Commercials – The Facts

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.

Comments

comments

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  • Ian Chambers April 9, 2015, 1:20 am

    Very well explained. Dare I pose another question….what if the music is out of Copyright? (In the UK that generally means 50+ years old)

  • Mark Heller April 9, 2015, 4:38 pm

    Now, I’d like to see your answers on the radio station, that steals Album Art, and copyrighted photos and band logos, and throws them up on billboards and bus signs…. (happening in Wisconsin, as I type this…)

  • Jay Murphy April 9, 2015, 12:05 pm

    Greetings Dan,

    Thanks for your newsletter on the use (or rather misuse) of copyrighted music in ads. Your timing could not have been better! From what I gather, I am probably next in a long line of those asking for your guidance or rather in this case, a clarification.

    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:

    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.

    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 promotor 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?

  • Dan O'Day April 9, 2015, 3:33 pm

    @Ian Chambers: If the musical composition has entered the public domain, then no license should be needed insofar as broadcasting the composition…or for a recording of that public domain song that, too, has entered the public domain.

    Remember, though, that you have at least two issues in play here: the intellectual property (the musical composition) and the performance. There are countless recordings that are not in the public domain even though the compositions themselves are.

    Beethoven’s 7th Symphony? Public domain.

    A Boston Philharmonic recording of Beethoven’s 7th? Almost assuredly not public domain…unless the Philharmonic “donated” the work to the public domain.

    A recording of Bruce Springsteen singing “Home on the Range”? The song is in the public domain, but the recording is awfully darned likely to be under a copyright owned by Springsteen or by an entity to whom he assigned it.

  • Mark Smith April 9, 2015, 6:16 pm

    I may have read through this too fast. What I’m hearing is that no radio station can ever use any kind of music in the background of any locally-produced commercial or announcement of any kind, ever. All commercials or announcements must legally be dry read only. Am I misunderstanding this?

  • Dan O'Day April 9, 2015, 7:22 pm

    @Mark Smith: Yeah, you might want to go back and read it again more slowly.

  • Nick Summers April 9, 2015, 9:54 pm

    Policing this seems to have become the responsibility of Production Directors, which is fine with me, but sometimes even management is not on board.

    When I was Production Director at a medium-market mom & pop a while ago, we were sent an RV dealer commercial which used a Sinatra recording of “Come Fly With Me.” When I brought this to the attention of “pop” owner and explained why it shouldn’t be aired, His response was essentially a shrug of the shoulders. “We’re running the spot,” he said. He just did not care. After that, when spots in violation came in from outside, I e-mailed the Sales Manager and him with the mp3 and the words: COPYRIGHT INFRINGEMENT ALERT. No action taken, ever.

    Fortunately, at my current station group, the issue is taken more seriously. I find that in most cases, when this is explained to a client wanting to use a piece of music, they “get it” and it is no longer a problem. Our AE’s are all aware of copyright and, when necessary, explain it to an advertiser before it even reaches me.

    I make a point of educating new AE’s on the subject. Recently we had a new hire from a station group in Phoenix. He wanted to use the Godfather theme in a spot with a Vito Corleone voice he thought was oh, so clever. “Well, we did it in Phoenix and it wasn’t a problem.” Sorry.

    Still, people try to slide one by and say the most ridiculous things to justify it. One account already on the air had been using Monty Python’s “Bright Side of Life.” This touchy client delighted in choosing his own music, so we had to handle it delicately . When I explained that we had to stop using it, he said, “well, how about the Vera Lynn recording from World War II?” Not sure if he realized “Bright Side” had been written by Eric Idle.

    A real strange one happened just a couple of months ago. We received a spot from a local ad agency with “Luck Be A Lady” from “Guys and Dolls” as background music. I alerted the station AE and she forwarded me the email exchange. The agency’s response included, “it’s just a karaoke track and we bought it.”

    If only it were that easy.

  • JeffM May 22, 2015, 7:39 pm

    I can remember local programs and commercials, both radio and TV, when I was a kid (I ain’t no kid anymore unfortunately, I’ll be 60 soon…) that used commercial records as music all the time. A local “women’s interest” show used Leroy Anderson’s “Jazz Pizzicato” as its theme, a car dealer adopted the hook from Patti Page’s “Cross Over The Bridge” (“Cross over the bridge to savings at Larson Chevrolet!”) and a department store built their bridal-shop TV commercial around Gary Puckett’s “This Girl Is A Woman Now.” These are just a few examples.

    I know the rules have changed, but WHEN did they change? Don’t think I can blame Sonny Bono for this one, as I believe it goes back to the 80’s or so. Any light you can shed on this angle; I’d be grateful.

  • Rich Roszel August 11, 2015, 9:44 pm

    To Mark Smith,

    The production music Dan mentioned is, in fact, copyrighted material. But it is also licensed, which means that there is a system in place with the owner of the music for a station, production house, ad agency, etc. to pay a licensing fee in order to have permission to use it.

    In some cases, the music is set up in a BUY OUT arrangement where you pay for it once and then can use it again and again. Other licenses are set up with annual blanket fees. Still others make you pay per use. Regardless, your agreement with the company providing said production music is what allows you to use that music legally. That company still holds the copyright to the music and still controls its use, but they have given you contractual permission to use it on your commercial or as your program theme or whatever.

    “Commercial” music such as the type Dan was describing (popular music) CAN be used in some cases, but as he pointed out, you have to secure permission and that can be very costly. The Harry Fox Agency in New York handles a lot of this type of licensing if I recall correctly.

    For my company, we have decided to go with an annual blanket license that allows us to use our Production Music Company’s collection of about 150,000 themes in broadcast and corporate work which includes websites and social media (yeah, that’s a separate line item in the contract). It’s somewhat pricey, but it gives us what we need to do the job well. And we have some clients who come to us because of what we can do with music to improve their presentations.

    So no, you don’t have to do all of your commercials and promos as dry reads … as long as you pay specifically for the right to use the music you want to use in the way you want to use it. Your only other option is to compose and produce all of the music your station uses yourself. 🙂

    Best,

    Rich