DAN O’DAY TALKS ABOUT RADIO

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?”  

Dan Replies:

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”?

No.

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.”

Bisceglia adds:

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.

In response to my “2 Key Questions for Effective Radio Advertising” article, Blaine Parker noted:

“I used to have a form for the account rep interviewing a new advertiser.

It had a version of the question, ‘What problem is the advertiser promising to solve for the consumer?’

At least half the time, the answer to the question was, ‘We need more sales!’ ”

As I do with any new client, I sat down and wrote a bunch of questions sparked by that “We need more sales!” declaration.

Because no specific advertiser has been identified for this exercise, of necessity my questions are generic, not specific.

Here’s Something Important to Understand About These Questions.

When I ask these questions, I never know which of them will lead to a successful ad campaign.

Some of the questions might seem “too basic” to you. Others might seem obvious…or obscure.

I write down every question that comes to mind, knowing that most of them won’t lead to helpful answers.

I do that, of course, because I don’t know in advance which questions will lead to dead end.

These Are in the Order They Occurred to Me.

For a moment I was tempted to move “Describe your ideal customer” higher up the list, because it’s such an obvious (yet important) question.

Then I realized if I rearranged the order of the questions, I’d be defeating my purpose: to share with you, on a basic level, the thought processes I go through when a client says, “We need more sales!”

When the Client Says “I Need More Sales,” Here Are a Few of the Questions I Ask Before Thinking About the Copywriting Challenge that Awaits Me.

* Why do you need more sales?

* Because your expenses have increased? If so, which expenses?

* Payroll

* Inventory

* Shipping

* Energy Costs

* Rent

* Storage

* Loss

* Spoilage

* Breakage

* Theft

* Have gross sales dropped?

* Have overall profits dropped?

* Have your margins (the percentage of the sale price that represents pure profit) changed?

* Because your profit margins have shrunk?

* Why have they shrunk?

* Increased competition?

* Are you selling a commodity, which inevitably results in a price war among competitors?

* Because you’re in hock to your bookie?

* Do you need more new customers?

* What do you want the new customers to buy?

* Do you need your existing customers to buy from you more frequently?

* Do you need your existing customers to place larger average orders?

* What do you sell the most of? Why?

* What is your single most profitable item?

For Storefront Retailers

* What is the biggest sales day of the week for you? Why?

* What is the slowest sales day of the week for you? Why?

* Have your existing customers’ buying habits changed? If so, why?

* Are your existing customers spending less per order than they used to? If so, why?

* Is there a time of day when sales are dramatically less than the rest of the day? If so, why?

* If a new customer came in and purchased just one item from your store, what would you like that one item to be? Why?

* Do any of your products necessitate future continuing purchases (e.g., filters, toner cartridges)?     

* Do your customers presently buy those necessary continuing purchases from you? If so, how often?

* If yes: Could you do something to entice them to purchase more frequently?

* If no, why not? Why do they purchase elsewhere?

Describe Your Ideal Customer.

* Gender

* Age

* Income

* Job/Profession

* Marital status

* Do they have children?

* Do you have a referral program in place?

* Do you have a rewards program in place?

* How would your typical customer describe your store?

* How do you wish your typical customer would describe your store?

* Do you need to generate more sales…or more leads that convert to new sales?

* What do your employees do to encourage more sales from browsing customers?

* What do your employees do to encourage larger sales from customers at the time of purchase?

* What does your typical customer say to himself immediately before deciding to come to your store to buy something?

* What problem(s) does your company solve for its customers?

* What is the most recent new thing you tried to increase sales? What were the results?

* Can you upsell an added service to go with a purchase?

* Does any competitor of yours sell more than you do? If so, what reason would their customers give for buying from them, rather than from you?

* What products/services can you bundle into a larger, more profitable purchase item?

* What do you do better than your competition?

* What does your competition do better than you?

* What is the one thing your customers repeatedly have asked for that presently you don’t provide?

* Which items/services provide you with the highest margins?

Download free radio copywriting seminar here.

My big “secret” as a radio commercial copywriter is to keep asking basic, naive questions until I understand:

1) What problem the advertiser is promising to solve for the consumer

and

2) Why their customers or clients chose to become their customers or clients.

Until I understand those two points, I can’t write anything worth writing.

Here’s an oblique example of this (i.e., I’m deliberately withholding enough information to enable anyone to guess who the client is):

In interviewing the client, I kept asking why someone would want what the client was offering.

What’s the Advertiser’s Value Proposition?

I wasn’t being sly; I simply didn’t understand what you might call the Value Proposition.

When the client would reply with boiler plate, right-off-the-brochure answers that didn’t add to my understanding, I’d repeat my question.

Again and again…because I still didn’t understand the Value Proposition.

Finally, with considerable frustration, the client replied “Because ___________!”

The Results of Doggedly Repeating that Question

1) At last I understood.

2) I wrote the entire campaign around that “Because ___________!”

3) To my surprise and delight, “Because ___________!” actually became a catch phrase in Southern California.

You can ask someone, “Are you familiar with (Company)?”

If they are, usually they respond, “Oh, you mean the ‘Because ___________!’ people.”

Inasmuch as “Because ___________!” explains precisely why you’d want to do business with this company (rather than being something that’s just catchy or cute), I’m delighted whenever I hear that.

Frankly, it never occurred to me that I’d ever create a catch phrase.

The Importance of Asking Naive Questions

For my technique of asking naive questions, you need to resist the temptation to nod and say “uh-huh” after the first few times you don’t get an answer you comprehend.

In school, I never could understand why when the teacher would ask, “Does anyone have any questions?” nobody but me raised their hands.

If I didn’t comprehend something we were being taught, surely at least one other kid in the class didn’t get it, either.

I realized that some other students must be equally puzzled but were too embarrassed to admit it publicly.

But if I don’t understand something, I don’t blame myself. The other person hasn’t successfully explained it to me.

So I keep asking “But why…?” until at last I understand why the targeted consumer wants what the advertiser is offering.

At that point, the hard part is done. Now I’m free to devise whatever type of story I think will sell that “But why…?” 

As an advertising copywriter, one of your most important skills is the ability (and willingness) to edit your own work.

If it’s a radio commercial and it contains so many words that it can’t be delivered at a pace that is natural to the dialogue, something’s got to go.

Here’s the test:

“If I delete this (word/phrase/line/paragraph), will the message be any weaker?”

If the answer is “no,” delete that word/phrase/line/paragraph.

How do you know if omitting it would weaken the message? Delete it and listen to the entire spot performed without it.

As we cold-blooded, tough as nails writers have been known to say:

When in Doubt, Cut it Out.

For a good writer, often that means cutting a “good” line: clever or forceful wording that makes an impact.

But does that impact actually make the ad stronger?

I can walk up to you and slap you in the face with a cold fish, which would make an impact on you. But that impact probably wouldn’t increase the likelihood of your purchasing the advertised item.

(Unless, of course, the advertised item is a fish slapping service.)

Less experienced copywriters often are unaware of elements that simply are irrelevant.

Often you’ll find those irrelevant elements at the beginning of the spot.

Ironically, it’s common for those irrelevant elements to have helped you create the entire commercial.

You begin writing, and your first line or first paragraph sets the stage for the rest of the story you want to tell.

For the record: Usually it’s a bad idea for a copywriter to begin the writing process by starting at the beginning of the commercial. When you do that, your first lines determine the direction of the rest of the copy.

It’s smarter, more efficient and more effective to begin with the action you want the targeted listener to take. Once you’ve defined that action, build your story so that it leads inexorably to the Call to Action.

During the writing process, your opening line establishes the foundation of the story you want to tell.

Once it’s done its job — once you’ve written a complete, compelling sales message — often you discover you can remove that foundation and your story stands on its own.

You might envision those opening lines as scaffolding for the message you’re intending to build. When you reach the point where the story stands on its own, the scaffolding no longer is needed.

I often use the copy in Trader Joe’s Fearless Flyer as examples of good copywriting.

This week, however, I came across a front page ad that is woefully and misguidedly overwritten.

Here’s the first paragraph. What could you delete without weakening the impact of the sales message?

PEPPERMINT CHOCOLATE BAR

Close your eyes. (Well, read this first; then close your eyes.) Imagine a cool, crisp winter day. Imagine breathing deeply and all your cares disappearing in an instant. This, chocolate-loving friends, is the sensation you will experience when you bite into Trader Joe’s Peppermint Chocolate Bar. It might even be better than your imagination, actually, because it’s chocolate.

You probably found it easy to spot what the writer should have omitted: the first two sentences.

You don’t need “close your eyes.”

You certainly don’t need the amateurish “Well, read this first; then close your eyes.”

If the writer had dumped those first two sentences, the spot would have begun:

“Imagine a cool, crisp winter day. Imagine breathing deeply and all your cares disappearing…”

Do you miss the two deleted sentences? Is the impact of the actual message lessened in any way?

There are more edits that can be made without weakening to the impact of the copy:

“all your cares disappearing in an instant.”

– Ending the sentence on “in an instant” highlights “in an instant,” while the image they’re trying to create is “your cares disappearing.”

– The copy is better off without including “instant.” But if the writer feels that’s important to include, “breathing deeply and all your cares instantly disappearing” would be stronger.

When they end the sentence with “in an instant,” everything stops.

“In an instant” has no natural connection to the “experience” the next line sells, while “cares disappearing” is part of what they’re trying to sell.

Other strong hints that this particular piece of copy was written by someone relatively new to the craft include the use of extraneous words or the misplacement of key words. In a piece of sales copy, there’s no such thing as a “neutral” element. Either it helps the sales message or it gets in its way.

The line “It might even be better than your imagination, actually, because it’s chocolate” is derailed by the placement of “actually.” “Actually” brings that line’s momentum to an abrupt, unnecessary halt.

The second paragraph of the Trader Joe’s ad explains what the Peppermint Chocolate Bar is and how it’s made. Then:

“It would be delightful just like that, with nothing else added. Rather than settle for simply delightful, we went for supercalifragilisticexpialidocious — so, we asked our supplier to hand-decorate each square-ish bar with swirls of white chocolate.”

Why the hell is “supercalifragilisticexpialidocious” there?

Evoking a film image of Julie Andrews singing interferes with the message they’re trying to deliver.

On the other hand, that paragraph does have a word whose use here I love:

“Square-ish.”

Okay, probably not a real word.

But it helps us more clearly see the item in our mind’s eye, while telling us, “It’s not exactly square…”

That’s an example of the flowing, easy-going language that represents the best of Trader Joe’s print advertising.

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