A Loyal Reader Asks:
“I think this is an excellent spot, but isn’t the use of music to promote Radio advertising a copyright violation?”
Before I respond, please be sure to read the fine print on my business card.
I’m not dispensing legal advice.
If you have questions about any action (or inaction) you are considering that might have legal ramifications, ask them of a qualified professional.
And Now Back to Today’s Letter….
Yes, both song uses are copyright violations.
Hopefully everyone here now understands there’s no such thing as “the 7-Second Rule.”
Whoever told you, at some point in your career, that it’s okay to use a copyrighted song in a radio commercial as long as you don’t use more than 7 (or 4 or 5 or whatever imaginary number was cited) seconds was mistaken.
There isn’t and never has been such a rule.
The One Way to Know for Certain that Advertisement Is Legal
Technically, I can’t say with 100% certainty that that radio commercial commits two copyright violations.
Theoretically, it’s possible that the spot’s creators obtained licenses from the copyright holders of the two songs and the two performances used in the commercial.
I would be more than shocked, however, to learn that is the case. I would, in fact, be gobsmacked.
Isn’t This an Example of “Fair Use”?
Uh…Could You Elaborate on that Answer, Please?
The Internet offers approximately a billion instances of copyright infringement wherein the infringing parties attempt to defend their actions by yelling, “FAIR USE!”
The First Thing You Should Know About “Fair Use”
Simply yelling, “FAIR USE!” does not qualify an appropriation of someone else’s copyrighted work under the Fair Use Doctrine.
Individuals who, for example, take a copyrighted audio recording of a hit record, combine it with some sort of graphic and then upload it to YouTube along with the explanation that they are doing so under the umbrella of the Fair Use Doctrine are not protecting themselves against claims of copyright violations.
The Second Thing You Should Know About “Fair Use”
If the appropriation of a copyrighted work is determined to be covered by the Fair Use Doctrine, that doesn’t mean no copyright infringement occurred.
Quoting attorney and intellectual property expert Julie J. Bisceglia from THE ULTIMATE, NON-LAWYER’S GUIDE TO COPYRIGHT INFRINGEMENT IN RADIO COMMERCIALS…And How To Avoid It (without fear of committing a copyright violation, inasmuch as I own the copyright):
The Fair Use Doctrine is a way of saying, “Yeah, there was some copyright infringement but it was so small or it was done for the right kind of purpose that we’re really not going to hold you liable. We’re going to allow you to use this little escape hatch that’s built into the Copyright Act.”
It’s very, very tricky and very grey. If you have to rely on the Fair Use defense to get yourself out of trouble, you’re in trouble.
I’m guessing the spot’s creator believes (and perhaps was counseled) that the commercial qualifies as Fair Use.
But one of the four key elements a court looks at is “the nature and the purpose of the use”; it needs to be for a “noble purpose” — education, criticism, commentary, etc.
It’s difficult to imagine a court agreeing that “promoting the sales of radio advertising” is a “noble purpose.”
(That sound you just heard was that of a few thousand account execs unsubscribing from my Radio Advertising Letter.)
Ironically, I’d guess that the use of “Sweet Dreams” is even less defensible than the use of “Brown-Eyed Girl,” because “Brown-Eyed Girl” was used to illustrate a point…
…while ending the spot with the snippet from “Sweet Dreams” primarily serves the purpose of…ending the spot.
Structurally, it’s a good way to circle back to the opening reference to “the power of sound.”
Ending the commercial with a call-back to its opening often is an effective technique.
But here, in my opinion, it strengthens the impact of the commercial rather than the impact of the message.
That may sound contradictory.
Certainly it’s arcane to the 99.92% of world’s population who aren’t interested in the structural elements of copywriting.
To me as a writer, “providing an effective way to end the commercial spot” is a noble purpose.
But I suspect it would be difficult to find a court that would agree with that to which any good copywriter would readily attest.