Beware The Wolf Peach
ACCOUNT EXECUTIVE: Here’s the new commercial copy for Ed’s Submarine Sandwich Shop. By the way, for music they want us to use The Beatles’ “Yellow Submarine.”
PRODUCER: We can’t do that. That would violate federal and international copyright law.
ACCOUNT EXECUTIVE: Excuse me?
PRODUCER: “Yellow Submarine” is a copyrighted song, and the Beatles’ recording of it is a copyrighted performance.
MANAGER: Yes, but we pay BMI and ASCAP fees, so it’s okay for us to use this song.
PRODUCER: No, the BMI and ASCAP fees are for entertainment broadcast purposes only. By paying those fees, we have the right to play BMI and ASCAP songs as part of our programming. But that does not give us the right to use the songs in commercials.
MANAGER: That’s ridiculous! Unfair!
PRODUCER: Really? If you turn on the TV and see a national ad campaign that uses a hit song, do you assume the advertiser paid a substantial fee for the rights to use that song?
MANAGER: Yes, I guess.
PRODUCER: And do you think it’s fair that the advertiser couldn’t use that song in the commercial without paying a lot of money to the copyright holder?
MANAGER: Sure, that’s fair. But we’re just talking about a local sandwich shop, not a national campaign.
PRODUCER: Right. But….If that same song is being used by local sandwich shops all over the country — none of whom is paying a licensing fee — how likely will the copyright holder be able to charge a substantial fee to that national advertiser? When a local advertiser — any advertiser— illegally appropriates a copyrighted work, it diminishes the market value of the copyrighted asset.
MANAGER: Ah, but you are forgetting one thing: The Seven Second Rule.
ACCOUNT EXECUTIVE: What’s the Seven Second Rule?
MANAGER: It’s okay to use copyrighted material as long as you don’t use more than seven seconds of it.
PRODUCER: There is no such thing as the Seven Second Rule. Never has been.
MANAGER: But everyone knows about the Seven Second Rule!
PRODUCER: Hey, in the 18th and much of the 19th Century, everyone in America knew that if you ate the poisonous wolf peaches, you’d die a quick yet painful death.
ACCOUNT EXECUTIVE: What are wolf peaches?
PRODUCER: Today we call them tomatoes.
ACCOUNT EXECUTIVE: But tomatoes aren’t poisonous today.
PRODUCER: And they weren’t back then, either. By the way, did you know that even though the tomato is a fruit, the U.S. government calls it a “vegetable” for tax purposes?
MANAGER: Do we really need to know that?
PRODUCER: Okay, no. But my point is: Even if “everyone” knows about the “Seven Second Rule,” they’re wrong. Unauthorized use of a copyrighted work becomes illegal when it exceeds the vague concept of “fair use.” For commercial purposes, it is not “fair use” if “the heart” of the copyrighted work is used.
In fact, in the late 1940s a lawsuit was filed over a single second of audio: Cartoon voice legend Mel Blanc had provided the voice of “Woody Woodpecker” in three cartoons. But then Blanc signed an exclusive contract with Warner Brothers, and the producers had to find a new voice for Woody.
But they continued to use the 5-note “laugh” that Blanc had created for them. And that laugh was used in a hit novelty record, “The Woody Woodpecker Song.”
Blanc sued…and lost. But not due to “the Seven Second Rule.” He lost because he had not copyrighted the laugh in the first place.
By the way, to use copyrighted, recorded music in a commercial, you must obtain two licenses: one from whoever owns the copyright to the song (the publishing rights), the other from whoever owns the copyright to the recording. That’s why on some national campaigns you’ll hear a classic oldie that isn’t sung by whoever had the hit. In such a case, the advertiser got permission to use the song but not the performance.
MANAGER: Golly, I sure wish someone would right a concise, easy to understand e-book spelling out exactly what we are and are not allowed to do when using music in commercials.
PRODUCER: Dan O’Day already wrote that book. It even contains a couple of pages we could photocopy and show clients, when necessary.
MANAGER: And it’s free?
PRODUCER: Uh, no. It costs roughly the same as lunch at McDonald’s.
MANAGER: Forget it.
PRODUCER: (sigh) Okay.
ACCOUNT EXECUTIVE: Wait, wait! Ask him if we can pay for the book in trade…
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Ah, if only my previous radio managers had been so reasonable! The usual response was, “You aren’t a lawyer and know nothing. Shut up and do what you’re told”. And of course if we had been sued you know who would get the blame…
“BAH! We’ll take our chances! Make the sale! The station is being sold next qtr so it won’t mat–oh, crap, you weren’t s’posed to know that!”
Dan,
I’ve bought a variety of things from you over the years, but this information is both priceless and so relevant. Thank you so much for keeping us up-to-date. I will visit your here frequently.
Warmly,
Joe
Paso Robles, CA
Hi Dan, thank you kindly for this great post. I’m just starting to do more on-hold messaging and many clients of course want music. I know not to use recorded/copyrighted music of course but I’m just learning all about royalty-free music. (I’m assuming the same laws apply to on-hold as to commercials.) I’m definitely going to purchase your book as it looks like the go-to resource on this subject. Thank so much for all the great (and funny!) information.
My favorite GM response to my “NO” on using a song for a “GOOD CLIENT” was, and I quote: “I’ll play the percentages on this…use the song”. I’ll play the percentages….HA!! Guess what?? Nothing happened. Spot aired, no one died, no letters arrived, no lawyers phoned, sun came up, sun went down, really bad pop music kept being made and played, birds sang and cats cleaned their own fur.
OH and I kept having to endure the wide, WIDE grin from an “I told you so” Sales manager. (I never really liked him)
@Ben: That’s what thieves do. They steal when they think the odds of their being caught are low.
I bought this book a few years back. It has ended a ton of discussions on infringement. I no longer look like the bad guy.
\Hey read this, Now tell me you still want to take a chance playing that music in a spot.\
thanks Dan, for making my life easier!
Thanks for clearing this up. I thought there WAS a 7 second rule although a little voice told me it probably wasn’t true. One question I have about this is “if a client is a DJ, they pay royalties to play songs so…can they use any part of these songs in their ad to demonstrate the type of music you would expect at the dance?” Thanks, as always, for your enlightenment.
I have to have this same conversation with clients/sales people several times a year. It always centers around the fact that we already pay ASCAP/BMI fees to performance rights and therefore have the right to use the music on a commercial. This mindset is the staple of clubowners’ arguments about using the music. THEN we get spots from other stations USING copyrighted music. That makes making my point on using copyrighted even harder to make as I get the old, “Well, WXYZ is using it their commercials, that means we can too.” No it doesn’t, in fact since we KNOW it’s illegal, we are just as liable to play THEIR commercials with the illegally used music in it. Dan’s book puts it all in perspective.
@Theresa: It’s the same as a radio station: That DJ might pay a licensing fee to play the music, but that doesn’t include a license to use it in commercials.
Purchased Dan’s guide in 2003 for the radio cluster where I am Prod Director. I keep a printed spiral bound copy strategically located next to studio door near where clients/guests sit and sales reps enter with “the request”. I’ve played a lawyer on the radio, but haven’t had to put on the faux attorney hat and explain the intricasies (sp) of this subject off-mic since…oh…2003.
@Corey, @JT, @Rob, @Joe, et al: I just want to thank you guys for the nice (and unsolicited) words about my “Copyright Laws” e-book.
It’s the first e-book I ever published, it continues to sell, and I wrote it because at the time not a week would pass without my getting a phone call or e-mail beginning with, “Dan, would you settle an argument…?”
It always nice when people buy my stuff. It’s even nice when I get that kind of feedback, letting me know it’s helped someone.
Oh man,
The number of times I’ve had this argument with clients. Some of my favourite responses to “Can’t do that, it’s illegal” include:
“But I saw it on youtube, if *record label*’s lawyers haven’t removed it from there, they won’t get it here”
“Oh, who will know”
“But I heard another station using it in a commercial” <- This one lead to a lengthy discussion about use for promotional vs commercial
And my all time personal favorite
"Just make up 2 versions. If *record label* complains, pull the first one and run the second one"
They knew it was illegal, but just didn't care. Oddly the client owned a business that was the recent victim of piracy…
I was in a market with extra energetic auto dealerships. One dealership used a current, hit song in his spot (we produced it under the ‘we’ll play the odds’ plan). Another dealership heard it and called the appropriate people. Thanks to the .mp3, he was able to send ’em an actual aircheck.
Fortunately for us and for the dealership, all they got was a cease/desist order…but for once, we had the ‘I told you so’ grin (but of course, we didn’t say it…c’mon…we’re just DJ’s).
If I had a dime for every time I’d had this conversation…well, I wouldn’t be worrying so much about paying bills on my hourly wage, that’s for sure.
My question is, what about liners that we get from our production house? I frequently hear snippets of songs in them. Are we liable if we use those?
@Stevie: I’m not dispensing legal advice, just giving my opinion based upon my own understanding of copyright laws — Right?
Answer: It depends.
As I explain in the copyright laws book, if you pay BMI/ASCAP license fees you’re allowed to use the music for your programming — which would include promos for your programming.
But if they’re for sponsored promos (e.g., “Come to Y107’s Spring Frolic, sponsored by Ed’s Motors) or promos for sponsored events (even if the sponsor isn’t mentioned), your license fees wouldn’t cover them.
The production house itself has different responsibilities. I suspect they don’t pay license fees, yet they’re making a new recording of copyrighted works.
If part of their business model is to make new recordings of copyrighted works and sell those recordings to radio stations…and they haven’t negotiated license fees….
Well, one day we’ll all enjoy reading about it in the trades.
Dan,
I have one for ya. Our station has a client who owns an electric train shop. The A.E. thought it would be cute to give him a spec spot and show him how “awesome” his train shop would sound on the radio. While production did use a generic, up-beat track…the very beginning of the spot is Ozzy screaming “All Aboard!” from Crazy Train. Then it transitions into the generic bed music. Sooooo, would that spot be illegal? Curious minds want to know.
Thanks,
Chad
P.S. You guessed it…the train shop owner LOVED the spot and wanted it on the air. He mentioned that the “All Aboard” was the icing on the cake.
As an attorney and a station manager, I get beat up and questioned by all sales weasels. And to be clear, even a radio station promotional television commercial must have licenses to use a montage of songs, correct?
@Justin: Correct. It’s all covered in the book.