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RADIO GROUP’S LAWYER OKAYS COPYRIGHT INFRINGEMENT

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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  • Terry Stevens April 17, 2015, 10:18 am

    We’ve had clients who insisted on using Copyrighted music in their ads. They insisted they had the right to do it, and wouldn’t budge. Finally, we had our lawyers draw up a document stating that…

    “[CLIENT] agrees to Hold [RADIO COMPANY] Harmless, Indemnify [RADIO COMPANY] for any and all losses incurred by the airing of the commercial in question and Defend [RADIO COMPANY] (pay any and all legal expenses incurred by the airing of the spot).”

    Realizing how serious this matter really was, the clients backed down, ran a perfectly legal spot without copyrighted music, and everybody made money anyway.

    Being a professional means being willing to have tough conversations with your client.

  • Terry Stevens April 17, 2015, 3:40 pm

    We’ve had clients who insisted on using Copyrighted music in their ads. They insisted they had the right to do it, and wouldn’t budge. Finally, we had our lawyers draw up a document stating that…

    “[CLIENT] agrees to Hold [RADIO COMPANY] Harmless, Indemnify [RADIO COMPANY] for any and all losses incurred by the airing of the commercial in question and Defend [RADIO COMPANY] (pay any and all legal expenses incurred by the airing of the spot).”

    Realizing how serious this matter really was, the clients backed down, ran a perfectly legal spot without copyrighted music, and everybody made money anyway.

    Being a professional means being willing to have tough conversations with your client.

  • Francisco R. Montero April 20, 2015, 8:03 am

    I’m a managing partner at Fletcher Heald & Hildreth and I wrote the article that’s quoted. The station shouldn’t assume that liability for failing to obtain copyright holder permission will lie with the advertiser and/or producer of the spot. While it is true (as Terry points out below) that some national spot agreements contain warranties that the producer of the spot has all rights to use the content, you should not assume that just because it’s in a commercial spot that the station won’t be held responsible if the rights have not been obtained or if the producer has breached a warranty. Even with warranties, the station should make sure to have proper indemnification (hold harmless) commitments by the producer and enough money to cover the indemnified damages. Such warranties and indemnification (hold harmless) provisions are good to have in all agreements for spots not produced by the station. Further, if the station is also the producer of the spot, it will clearly be responsible for obtaining the necessary rights and be liable for producing music into a commercial without permission or rights.

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