Yesterday’s blog posting stimulated such an impassioned reader response that I feel obliged to issue this Declaration of Principle.
A radio station that knowingly, illegally uses copyrighted music in a commercial because “all the other stations do it” is akin to the liquor store that sells booze to minors “because all the liquor stores do it.”
A radio station that requires its employees to violate copyright laws (let’s be clear: TO BREAK THE LAW) or lose their jobs deserves the same respect people give to used car dealers who illegally “roll back the odometers” to cheat customers (and, again, to violate the law).
Those radio stations aren’t simply ignoring some nonsensical bureaucratic government dictate. They are stealing someone else’s property.
To those radio station owners and managers: You are law breakers. Your “My station will do anything if you give us money, even if it’s illegal” attitude disgraces the radio industry and insults the radio station owners and managers who abide by the law and respect other people’s property.
It should also shame you and your families. But some people will do anything for money, and some people will break the law for profit if they think they might be able to get away with it.
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!”
Suzanne Goucher and her husband, Chuck, picked me up at the airport in Portland and drove me to Augusta. Suzanne was concerned about what I might write in this newsletter when describing the visit. Unfortunately, nothing dramatic occurred during this trip, so Suzanne has nothing to be embarrassed about (except for possibly having been seen in a vehicle with me).
After my two days of seminars, I hitched a ride back to Portland with Rob “Spud” Sobczak.
The following week brought me back to New England, where I presented Real Life + Radio = 100% Local Every Day for Doug Harris’ Adventures in Broadcasting’s annual Promotion Directors School in my hometown of Hartford, Connecticut.
Next: My first visit to Singapore. Hint: The two primary hobbies of Singaporeans are shopping and eating.
