This commercial presently is airing on radio stations in Chicago and Milwaukee.
Sure, we could criticize that commercial for relying on that hoary, inane device favored for decades by radio production beginners: the “auditions” for the commercial.
The criticism wouldn’t be due to the triteness of the concept. It would be because of the obvious fact that this commercial does not present the story either of the advertiser or, better, of someone enjoying the benefits of the advertiser’s product or service.
No, this radio commercial presents the story of people pitching jingles for a radio commercial.
Here’s A Clue: What listeners picture during a radio commercial is what they remember. What listeners remember most from this commercial is the mental image of someone playing a guitar and singing an idiotic “jingle.”
We could criticize the college radio-level voice acting performance. I mean, the guy can’t even make “What do we have today?” sound like a question. It’s two amateur voices, reading bad copy.
We could criticize the fact that the four “different” jingle auditions utilize the same singer (and, apparently, the same guitar). One more blow to the listener’s ability to suspend disbelief.
But those criticisms would pale in the light of one simple fact:
That radio commercial is illegal.
It infringes on four separate copyrights, leaving the radio stations and the advertiser vulnerable to lawsuits from any or all four copyright holders.
Of course, it’s possible that the copyright holders of the songs “Penny Lane,” “Puff The Magic Dragon,” “Born In The USA” and “Take Me Home, Country Roads” don’t mind that Penny Mustard is using their music without permission. Perhaps when Bruce Springsteen hears this he’ll say, “Heck, I already have plenty of money. I’ll just let these guys rip me off.”
Or perhaps not.
I hear commercials as bad and as illegal as this one with dismaying frequency.
While major market bad commercials are almost as common as small market bad commercials, what makes this unusual are the blatant copyright infringements in commercials airing in the 3rd largest radio market in America.
I don’t know what rationales the managers in Chicago and in Milwaukee are using as excuses for taking the money and airing this spot. But here are the most common defenses radio stations give when they’re caught violating someone’s copyright.
1. “We already pay BMI and ASCAP fees. That makes this legal.” Reality: No, it doesn’t.
2. “Because we rewrote the lyrics, that makes it a ‘parody,’ and that makes it legal.” Reality: No, it doesn’t. Changing the (or writing new) lyrics to a song does not in itself constitute the creation of a parody — neither as it’s defined creatively nor as it’s defined within the realm of copyright law.
3. “The ad agency assured us it’s legal. So if anyone sues for damages, it’ll be the agency’s problem.” Reality: Copyright law adheres to the legal doctrine of “strict liability.” I’m not a lawyer (and obviously I’m not giving legal advice), but here’s my layman’s explanation of “strict liability”:
From the moment the infringing work is created, every entity that becomes involved with it becomes liable.
For example: Let’s say I’m stupid enough to change the lyrics of “Penny Lane” to “Penny Mustard” and have that sung in a radio commercial. When that recording is made (with an intent for subsequent distribution), a copyright infringement has been committed.
I forward it to the client for approval. The client approves, thereby becoming equally liable.
The spot then is sent to Radio Station X, Radio Station Y, and Radio Station Z, all of which air the radio commercial. Radio Station X, Radio Station Y, and Radio Station now are liable.
And so are the companies that own them.
“Golly, I didn’t know it was illegal to use that John Denver song in a commercial” is not considered a strong legal defense.
Neither is, “But the ad agency told us The Beatles wouldn’t mind.”
And, surprisingly, neither is this much of defense: “But you can’t blame us! We don’t pay any attention to what we put on our airwaves.”
4. “Look, if someone offers us money, we’re not going to turn it down.” Not even it’s illegal? Y’know, there’s a word for someone who will do anything for money….
5. “The advertiser threatened to pull the buy if we didn’t air the commercial.” (See #4, above.)
6. “But all the other stations in town are playing it!” And if all the other stations in town jumped off a bridge…?
I understand there are people writing radio commercials who don’t know what they’re doing. No doubt they’re doing their best — which is why when something like this comes from a college radio station or a small market, I don’t bother to take notice of it here.
I understand most business owners don’t know how to differentiate good advertising from bad advertising. When they were pitched this idea, Yellow Mustard probably thought it was simply brilliant.
What I don’t understand is why no one in management — sales manager, general manager, market manager — both knows and cares enough to step in and say, “Wait! We don’t break the law around here — no matter how much someone offers to pay us!”
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I, too, am amazed at how often such copyright laws get broken in this manner, and how very little broadcasters know or care about it. If you’re so compelled, there are SO many options to create a similar spot without breaking any laws…
Happens all the time on YouTube, too. They’ll pull a video for infringement, and creators cry “Parody! Fair Use!” seemingly without having even consulted exactly what that means from a legal standpoint.
Well, hey, you know what? To them, I say, “You guys go ahead, and risk your reputations, your clients’ trust, and thousands in legal fees and penalties. I’ll be over here, creating something original for my client that helps them achieve their advertising goals.”
I honestly thought through most of the commercial that this was an ad for mustard!
This came up many times during my radio days. And yes, I did my best to explain to the client just about the same things you explained here (although not in so great a detail). I nixed the ads and the concepts anytime someone wanted to use a hit song (or other copyrighted material) in a commercial, saying they had to not only pay for it but get permission. That usually quieted them down and we moved on to another concept. I am amazed that it still isn’t common knowledge…especially in a major market where you’d think the talent (?) would have been around awhile and picked up a few things…
I thought it was a commercial for mustard, too!
On the issue of parodies: we recently went through an election where one of the candidates plagiarized the use of “Mellow Yellow” for his jingle. I guess they thought it was cute because the candidate’s name rhymed and almost fit the meter. (And believe it or not, it was actually worse than the example given above.)
I don’t know if the same laws would apply to political ads, but I know the apparent infringement was enough for me to not vote for this person. I couldn’t help but question his integrity.
p.s.
Turns out the guy won the election anyway.
When clients ask ” Can we use (pick any artist’s music) under our radio copy?” I say No you can’t, the music is copyrighted. You and the radio station would be at risk for a lawsuit by the artist. If they continue to ask “What’s the big deal?” Just say to them: If you paid a company thousands of dollars to develop a jingle for YOUR business, would you have a problem with your competitior using it across town for THEIR business? They usually “get it” at that point and move on.
I don’t know if the same laws would apply to political ads
Absolutely, they do.
Are you SURE they didn’t get the rights to use the music, or are you assuming it? That still doesn’t excuse the irritating sound, but the skeptic in me wants to check that out.
OH my gosh, I wish there was a way I could forward this to my GM (and our whole sales staff). But they would know it’s me, for sure. My station is the WORST at this. In some cases I just refuse to do it, but in OTHER cases (when it’s my GM insisting I do it)… well, my job is on the line.
Thanks for sharing this Dan. Sending the link to sales and creative!
Sadly, the dollar increasingly trumps ethics as fewer & fewer stations take the high road. “The other stations do it…” or “We’ll stop when we get a cease & desist” seem to be the prevailing attitudes. Copyrighted music in club spots especially drives me nuts. But, when the coach (or station management, as it were) calls a play, you either play ball or go home. Unfortunately, even if you manage to land with another team, there’s no guarantee it will be any different.
@ Living that Nightmare:
We’ll stop when we get a cease & desist
1. That’s the equivalent of saying, “We’ll keep breaking the law until we’re caught.”
2. A “Cease and Desist” order is not a required first step by the people they’re ripping off. In a way, a C&D is a “courtesy” notice: “Stop or I’ll sue you.” But the party you’ve ripped off can simply file suit against you, and the first contact is a subpoena.
I hope that happens to your employer.
3. In North America, as well as all countries of which I’m aware, radio stations are granted licenses by the federal government. A radio station that as a matter of policy or of common practice forces its employees to violate the law or face dismissal probably is violating both state and federal laws and possibly subject both to criminal and civil prosecution.
And if the “creative geniuses” behind this train wreck had cared to do a little research, they could’ve found plenty of familiar, catchy tunes in the public domain that they could’ve used (yes, the concept would’ve been just as stale and the commercial just as terrible, but at least the end result would’ve been legal).
Fun fact for you Monty Python fans. In case you didn’t know, the familiar Monty Python theme music is “The Liberty Bell” by John Philip Sousa. One of the reasons the Python crew selected that music is because they didn’t have a budget for theme music copyrights, and “The Liberty Bell” is in the public domain – they didn’t have to pay to use it.
Um, not to steer the conversation too far astray, but just because music is in the public domain doesn’t mean the recorded performance of that music is in the public domain. There are lots of permissions required when using the music someone composed or the music someone performed. And as a matter of fact, getting permission from the person or the band that recorded it may not be all it takes. The record label may still have final say. It’s much easier to stay away from it altogether.
Hey on a positive note, with creative like that, Penny Mustard could be ready to join the “radio doesn’t work for my business” list of former station clients… if I were an ardent fan of any of the stolen music, I wouldn’t shop them because they (in the urban vernacular) dis-respected my music….
Does this apply to concert ads?
@Marcos:
Short answer: Yes.
Detailed explanation: Download the book.
On the “public domain” subject I brought up, Rich makes a very good point that the recorded performance of the music is NOT necessarily in the public domain (in fact, it’s most likely not). Great advice of his to “stay away from it altogether.” To that I would also add that your safest bet is to just use the music in your production library, that your station has paid for (either in cash or through a barter arrangement) and has the rights to use.
For example, say you have a local tree farm that wants to use “O Christmas Tree” in their holiday spot. The song itself IS in the public domain (as well as many other Christmas songs). But you CAN’T use the version of “O Christmas Tree” that Kenny G. performed. However, if you have a version of that song in your radio station’s production library, have at it.
Re: illegal use of copyrighted music…last year, I contacted the publishing company of a popular classic rock piece that (I believe) was being used illegally at another station, and this spot was very likely going to end up on ours, so I wanted to mak sure it was legal. The person I spoke to at the publishing company couldn’t seem to have cared less – he was not just disinterested, but actually gave me possile explanations as to why the (potentially) offending spot might be ok. As it turned out, the client didn’t end up on the air here, so I never pursued it further…but I was blown away by his indifference!
Thanks DAN….
Couple obvious points. I too thought they were selling mustard. opps..
Throughout the spot, I kept thinking to myself that there is no way that this could be legal. We’ve fought MANY of these battles with clients and ad agencies out here who think that simply because we’re thousands of miles away from the USofA that we have nothing to worry about. WRONG.
I’m proud to say that we have the policies in place to reject spots like this or provide them with a creative alternative. No matter how much $$$$ is coming in from a client, I’ll gladly walk away from that buy any day.
Sharing this with the rest of our station right now!
I downloaded Dan’s “The Book” a few years ago and I still use it to this very day. It’s worth 50 times the price, especially when you can use it to reassure an Account Executive that it’s okay to say no to clients and ad agencies that violate the law. Sometimes, as a manager, I would call the client and remind them of copyright infringement. If they threaten to pull account, I simply tell them, “It’s alright, you’ll need to save money for the pending lawsuit.”
This usually solves any misunderstandings.
As far as crosstown rivals breaking the law, how can I get them to stop?
I have lost clients because I wouldn’t break copyright.
I just stumbled upon your site when looking to see if anyone else thought the \Penny Mustard\ commercials are awful. Good site! Their current spot about the No Chinese furniture here/All-American sale is borderline racist – culturally insensitive at the least – and I’m not Asian. I can’t believe management let that air. The \brothers\ have always struck me as a poor rip-off of the Smithe brothers, trying too hard to be funny and failing miserably. And that’s independent of the copyright violations you’ve cited.
We just had a program director in our town try to use a clip from The Wizard of Oz in a commercial… claiming it was from a “royalty free” drops site. (???!!!)
I don’t think Warner Brothers would agree…
penny mustard commercials are culturally insensitive. apparently, they only want WASPs for customers. penny mustard, please go bankrupt.