My recent list of a bunch of things that are not allowed in a radio commercial without first obtaining permission of the copyright holder seems to have generated a lot of attention.
Some people asked me to clarify this Q&A:
Q: Is it legal to air a commercial for a musical performer’s local concert, using recorded examples of his/her music {without obtaining a license to do so}?
Answer: I know you won’t like this answer, but…No.
Jay Murphy wrote, referring to the “using music to advertise a concert”:
“I must confess I was somewhat troubled after reading your letter. No one likes to hear they’re breaking the law. I’ve been in this business long enough to know where the lines are… or at least I thought I did. All of your examples were obvious to me EXCEPT this one.
“Here’s the situation. After a conversation with my production director on this very topic, I produced an ad for an upcoming concert event. The ad is being underwritten by the major sponsor and has the full knowledge and blessing of the promoter who’s booking the acts. I do not doubt what you say is true but I need to know then…When exactly, is a concert ad ever legal?”
As it relates to copyright law, a concert ad is legal when the copyright holder(s) give permission to use the specific pieces of music in the commercial.
A license doesn’t have to be purchased; it just needs to be granted.
In the example Jay gives, “The sponsor has the full knowledge and blessing of the promoter who’s booking the acts.
If the promoter has been given authority (by the copyright holders) to authorize such usage, there should be no problem.
Steve Macaulay wrote:
“Many times in our market, a local musician or their promoter will buy airtime to promote their music and/or performance. They supply original recordings of the artist’s original song. I think that constitutes granting permission by the owner of the music.”
If a musician buys airtime to promote his music, which he provides to the radio station for use in the commercial, clearly he is granting the station permission to air his copyrighted material.
But if the musician owns the copyright to the performance but not to the composition, it’s a mistake to assume that therefore it’s okay to use, in a commercial, whatever recording he gives you.
Let’s say Paul Simon is giving a concert in your market. Paul says to your radio station, “I want the commercials to include The Sounds of Silence and also Graceland.”
Sure, Paul, no problem.
On the other hand, one of the many Paul Simon impersonators is performing in your market, doing a Paul Simon tribute show.
“Paal Sighmon” says to your radio station, “I want the commercials to include my impeccable renditions of The Sounds of Silence and also Graceland.”
Most likely he owns his own performance rights, so he can grant you a license to use them.
But if neither Paul Simon nor his representatives have granted a license to use those songs in a commercial? Uh-uh.
If Paal uses your radio station to advertise his appearance using his renditions of those two songs, without having been granted permission to do so, both Paal and your radio station might well have some legal ’splainin’ to do.
Terry Stevens wrote:
“This one concerns me:
“Air a commercial for a musical performer’s local concert, using recorded examples of his/her music? Answer: I know you won’t like this answer, but…No.”
“If the promoter or venue putting on the show is paying for the spot and their job is to promote the artist in question, wouldn’t permission from the artist/rights holder to use his/her music in the spot for the show be contained in the contract signed with the promoter?”
Yes, I think that would be quite likely. Especially if it’s a well-established promoter.
Next: I’ll share with you a current example of a radio spot that may or may not constitute copyright infringement. You can be the judge….
