A Loyal Reader Writes:
“I’m working in television these days, and ran into a rather interesting challenge the other day. Here’s the situation: the client is a small market car dealer who uses a little 2-person ad agency. In my role as a consultant working with a television station, I met with the agency last week.
“The agency subsequently sent me some of their commercials for evaluation. Included in the bunch was one that makes use of copyrighted material. There is a jingle using the infrastructure of an extremely well-known classic rock tune. The instrumentation sounds the same, the vocalist is a dead ringer for the vocalist on the original hit, and the lyrics are altered just slightly to refer to the savings a customer might receive by shopping at the dealership.
“I did not know this one was in the mix when we had the meeting, so I did not have a chance to ask where it came from, and whether the song had been properly licensed. It’s possible that everything was done correctly and all is fine, but it’s also possible that these guys just hired a band and did it without asking any questions. The ad is now running on multiple television stations, and there is a version on radio as well.
“If the ad was produced by an ad agency and they didn’t pay for a license, can the television and radio stations be held liable?”
Yes.
I’ll quote from my own book (first having carefully sought permission from myself to do so), THE ULTIMATE, NON-LAWYER’S GUIDE TO COPYRIGHT INFRINGEMENT IN RADIO COMMERCIALS…And How To Avoid It.
I’m the person asking the questions.
The person answering the questions is a well-known Intellectual Property attorney who is widely quoted in legal circles in relation to copyright law.
Q: An advertising agency creates a commercial for a submarine sandwich shop, using The Beatles’ “Yellow Submarine.” They rewrite the lyrics and record it themselves. It’s the same melody, but they’ve changed the lyrics a bit to work in the client’s message. For example, instead of “We all live in a yellow submarine,” they change it to “We all eat at the Yellow Submarine.”
The agency delivers the new commercial to my radio station. Can my station go ahead and air it?
A: Has the advertiser or the advertising agency acquired a license to use the music?
Q: No.
A: You’re taking a big chance. One of the things about copyright liability that people often don’t understand is that it is what is called “Strict Liability.” That means it doesn’t matter what your intent was.
For example, you can’t commit fraud by mistake; you have to intend to commit fraud for it to be fraud. But you can commit a copyright violation by mistake. “I didn’t know” or “I was just playing what they gave me” or “I didn’t really mean to” don’t help you at all. Anybody who is involved in infringing a copyright owner’s rights is an infringer and is liable.
Q: If you’re an attorney representing the copyright owner, who will you go after?
A: I will go after everybody I can find.
Q: So in addition to the advertising agency, that might be the submarine sandwich shop and the radio station — which might be part of a huge corporation….
A: Exactly.
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Now things have taken a slight variation…namely the use of copyrighted photos/images in banner ads on station web sites. I’ve had to go after a few of those too. I would imagine that the rules are them same.
@Jim Griffey: One difference is that it’s so much easier for copyright owners to learn of infringements that occur online, thanks to automated software that continually searches for them.
A good friend of mine is a very well known Internet marketer. Years ago he wanted to add a “Terms and Conditions” page to a website and used the verbiage he found on some other site.
He wasn’t thinking, “I’ll rip off this site’s page.” He just thought of it (as I probably would have) as basic, boilerplate language.
Turns out that “boilerplate copy” was copyrighted, and he paid $15,000 to settle the claim that was lodged against him.
IMPORTANT NOTE: When he tells this story, he does not blame the copyright owner. He blames his own naivety at the time. As I point out in this posting, in a case of Strict Liability, “I didn’t know” is not a legal defense.