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This appeared in the latest issue of my
Radio Advertising Letter.

It generated so much reader response that I’ve decided to reprint it here.

Years ago, I wrote my first e-book because I kept getting the same phone call, week after week:

“Would you please settle an argument…?”

That’s all I needed to hear; I knew that once again a radio station was grappling with the question of what’s legal and what’s illegal when it comes to using copyrighted music in commercials.

In this issue, I’ll simply tell you what’s permissible and what’s not, usually without going into the details of “why.”

(If I included the “why” for each one, it would require…Well, it would require a book.)

The type of copyrighted music we’re discussing is commercially marketed music.

If your station uses a music production library, that library is copyrighted. You may have purchased a license to use it “royalty free,” but it’s still copyrighted.

So to streamline this overview, let’s assume we’re talking about popular songs. The same laws apply to unpopular songs, but most commonly an advertiser wants to use a well-known, copyrighted song in a commercial.

“Copyrighted music” also refers to copyrighted performances. If you want to use a recording, both the song and the performance are copyrighted.

Is It Legal To…

Use a copyrighted song in a radio commercial without obtaining a license to do so?

Answer: No.

What if my radio station already pays BMI/ASCAP fees? Won’t that make it okay?

Answer: No. Your station pays those fees for the right to broadcast the songs as part of your programming. That does not include using them in commercials.

Have someone record their own rendition of the song, thereby creating a new recording?

Answer: No.

Rewrite the lyrics of the song to fit the commercial message?

Answer: No.

Use only an instrumental version of the song?

Answer: No.

Air a commercial for a nightclub that includes copyrighted music that represents the types of music the club plays? (After all, the club itself pays for a license fee to play the music in the club…)

Answer: No. They are paying for a license to play the music in their establishment. They are not paying for a broadcast license.

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.

Record a TV program’s theme music and play it on your airwaves for regular use in a program or feature?

Answer: No.

Take music that has been licensed by a national advertiser for a national campaign and use it to create a recorded commercial for a local affiliate or franchisee of that national advertiser?

Answer: No. If Ford Motors pays to use a song in its national campaign, that doesn’t give your local Ford dealer the right to use it in their own advertising.

Does “Fair Use” mean if we don’t make money from it, it’s okay to broadcast copyrighted music? For example, if we’re a non-commercial station or if we’re running a spot for a non-profit organization?

Answer: No. Noncom stations and nonprofit organizations are subject to the same rules as everyone else.

Is it legal if we use no more than 7 seconds of the song?

Answer: No. Whoever told you about the “7-second rule” probably is a big believer in Bigfoot and in organ transplants being conducted on innocent victims by space aliens.

Is it legal to use a copyrighted song in a commercial if other stations in my market are using it without having obtained a license?

Answer: And if all the other stations in your market jumped off a cliff….? No.

If the client told us it was okay to use the music, are we legally protected?

Answer: No.

If the client provides you with documentation demonstrating that a license has been obtained, that’s different.

But when’s the last time a client was able to show you such documentation?

If we receive the finished commercial from an ad agency or production house or another radio station and it turns out the commercial violates someone’s copyright, are we safe from legal action?

Answer: No.

Copyright law adheres to what is known as “strict liability.” That means, among other things:

A) Any party that is involved in infringing a copyright owner’s rights is liable.

B) “I didn’t know” doesn’t legally protect you. Under Strict Liability, it doesn’t matter what your intent was. If you accidentally commit a copyright violation, you still can be held liable for damages.

I’ve been told the worst that can happen if we’re caught is we’ll get a Cease and Desist order from the copyright holder, and if that happens we’ll just stop doing it.

Answer:

A) The question shouldn’t be “what can we get away with?”

That’s like saying, “If I can break into my neighbors’ house and steal their valuables without getting caught, is it okay?”

B) A victim of copyright infringement isn’t required to send you a Cease and Desist order.

Their first contact with you might be in the form of a Demand Letter, specifying a financial penalty that must be paid if you don’t want to face a lawsuit.

Most Radio People Want To Do The Right Thing.
A Few Simply Don’t Care.

One station’s creative director carefully explained to his market manager why acceding to a client’s request to include a popular song in their local commercial would be illegal.

“I’m willing to take my chances,” the manager replied.

Think about what that guy was saying: “I’m willing to break the law and steal from someone, because I think there’s a good chance I won’t be caught.”

Someone was offering to pay him, and he figured he probably wouldn’t get caught…so he was quite willing to commit an illegal act.

If “not breaking the law” didn’t dissuade him, perhaps the principle of “Strict Liability” should have.

You see, he worked for a very large radio company, which will remain anonymous.

Let’s just say it’s the biggest radio company in the world, and recently it changed its name to iHeart Media.

That guy wasn’t taking just his chances. Everyone involved in a violation of someone’s copyright can be held liable — including the huge radio company that owned this guy’s cluster…and that had very deep pockets.

Here’s my e-book about using copyrighted music in radio commercials.

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First let’s listen to the radio commercial….

 

Here’s a List of Everything This Radio Advertiser Did Right.

Here’s a Partial List of What This Advertiser Did Wrong.

1.  They begin with the name of the advertiser..thereby signaling to the listener, “This message isn’t about you. It’s about us.” So the listener stops listening.

2.  The advertiser appears to suffer from the “Everybody Already Knows Who We Are And What We Do” Syndrome. Why else would they pay for a commercial where the advertiser’s name is indecipherable to the average listener?

I’ve lived in Los Angeles for a long time, so I can guess that “USC” = “University of Southern California.”

I also understood the words “Medical Center.”

But the word wedged between “USC” and “Medical Center”?

What do you think the guy is saying?

I listened to the spot repeatedly, and I could make only two guesses.

It sounded most like “Norse.”

Has USC partnered with Scandinavia? Seems unlikely.

My second guess was “North” — “USC North.”

Does USC have another campus, somewhere to the north of the main campus? Perhaps they have a satellite location in Bakersfield? If the word was “North,” you’d expect them to give us a clue where that other location is.

After listening to the spot half a dozen times, I gave up.

I went to Google, started to enter “USC Norse”…and Google’s Autocomplete function suggested “USC Norris.”

The mystery of who the advertiser is was solved.

The mystery of why the advertiser requires listeners to do an online search to determine their identity was not solved.

Why Was the Advertiser’s Name Unintelligible in this Radio Commercial?

This commercial was allowed to air because they know who they are. They had no trouble recognizing their own name when they heard it.

As for the rest of us…Well, USC Norse can’t be expected to pander to the uneducated, ignorant masses, can they?

3. I’m guessing “someone in the office” wrote this radio ad, because the writing is so terrible.

After mumbling their own name, the next words are:

“Transformations are happening.”

Please let that have been written by someone who isn’t paid to write advertising copy.

It’s a meaningless statement, delivered limply in passive language (“are happening”).

4.  After the terrible opening line, the announcer has to pick up his pace to cram in more words per second:

“World-class clinicians and researchers are replacing the fear of cancer wi’ hope.” (The announcer isn’t all that “into” enunciating.)

5.  The copy continues: “As blah blah blah blah USC blah blah blah national leader blah blah blah ranked among the top 25 cancer hospitals in the United States…”

The top 25??

If you had the terrible misfortune of having been diagnosed with cancer, would you be looking for the 25th best cancer hospital in the U.S.?

6.  “Breakthroughs in medical science are creating momentous breakthroughs in healing.” Okay, they’re just putting us on, right? Having a laugh at our expense; “how long will it take people to realize this whole thing is a put-on?”

7.  They refer to a number of forms of cancer, any of one of which is critically important to certain audience members. So important, in fact, that they’re elucidated in the form of a monotonous laundry list.

8.  The terrible copy and mush-mouthed announcing (sorry, VO guy; odds are you could’ve done an excellent job with a little direction) combine with extraordinarily bland music selected and produced so poorly that at times it overpowers the human voice.

Hint: It’s difficult for the spoken human voice to heard over a piano. (In this spot, “bone marrow” sounds more like “low marrow.”)

If you’re going to have the melody (c’mon, there was the hint of a melody there) carried by a piano, you’re going to need some excellent processing by a skilled audio engineer to enable radio listeners to hear what that human voice is saying.

9.  Now that listeners have given up trying to figure out the advertiser’s name, we’re told the advertiser is part of some other entity whose name we can’t understand.

If you happened to notice it toward the end of the commercial (if you were able to focus your attention for that long), what did you think “USC Norse” is “part of”?

My best guess was “Kett.” Google, however, explained to me that the guy apparently was saying “Keck.”

10. They signal the approaching end of this abomination with a slogan that is wholly inappropriate to the target audience: The advertiser’s goal is “to make cancer a disease of the past.”

If you have cancer or if a loved one has cancer, you’re not looking for a place that is trying to make cancer a thing of the past. You’re looking for the place that offers you or your loved one the best chance of surviving cancer.

Using that slogan in that radio spot is downright bizarre.

11. They give two Calls to Action. We’re told to make an appointment either by visiting a Web address that goes by before we even realize a URL is being given or to call a vanity phone number.

A radio commercial should have a single Call to Action.

How do you decide what that single Call to Action should be?

Easy. What action is the one chosen by the largest percentage of people who want the results the Call to Action is promises? (You’ve forgotten, but in this case it’s “to make an appointment.”) That should be your single Call to Action.

Dan, You’re Not Giving the Radio Audience Enough Credit!

“For crying out loud, Dan, the fact that you’re not familiar with USC Norris or with the Keck School of Medicine (thanks again, Google) simply demonstrates the incredible depths of your ignorance. Probably 60% of medical professionals in Southern California know exactly what those two institutions are.”

If Norris and Keck are quite well-known among Los Angeles-area medical circles, then this might not be such a problem if the commercial were aimed at medical professionals.

But the radio advertisement targets members of the general public, not members of the medical profession.

But Dan, this Radio Commercial Does the Most Important Thing of All.

It gives the advertiser’s name four times.

Unintelligibly to everyone but the advertiser, but four times nonetheless.

Lighten Up, Dan. It’s Just a Radio Commercial!

What’s the big deal? I mean, it’s not like they’re trying to cure cancer or anything.

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RADIO MORNING SHOW COACHING IN ANOTHER LANGUAGE

radio morning show coachI understand why people often are surprised that I have coached radio morning shows that are done in a language I don’t speak.

But I can tell when something works or not, without understanding the words.

The first time I experienced this was years ago in Leipzig, Germany. I was listening to the radio in my hotel room, and the evening jock — speaking only German, of course — did a character voice.

I could tell the character was funny. For one thing, it clearly was a character and not just a funny voice. For another…I dunno. I could just tell.

In a taxi in Paris, the driver had on a French station. One guy was talking, obviously delivering the news. But then I heard a shift in his voice.

I couldn’t resist the impulse: I leaned forward and asked the driver, “Is he talking about the weather now?”

The driver nodded, yes.

Here’s an example of how you can fully understand someone whose language you don’t speak (unless you happen to be Finnish).

You can recognize a “home run call” in any language…and it doesn’t need to be confined to baseball.

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CONCERT RADIO COMMERCIAL GETS IT RIGHT

Tony_Bennett-Lady_Gaga
Two of the key precepts I’ve taught radio copywriters around the world:

1.  The commercial never should be about the advertiser.

2.  Whenever possible, give the listener a “test drive” of the results they’ll get from the product or service being advertised.

Here’s the commercial.

Good

Excellent beginning. In the first 4 seconds, you know what this radio spot is about: the music of Tony Bennett and Lady Gaga.

The advertiser was the Hollywood Bowl; they paid for the commercial.

But the advertisement didn’t talk about the Hollywood Bowl. The Hollywood Bowl was important only as the place where Angelinos could see Tony Bennett and Lady Gaga in concert.

The music itself acted as a “test drive” for the targeted listener.

Not So Good

The poor announcer is saddled with far too much copy.

Much of it was unavoidable.

They had to mention the album title to get the record company’s co-op dollars.

They had to mention Ticketmasters.

They had to mention that certain people could buy their tickets early, in a pre-sale.

But the sound is so badly mixed that the music drowns out the words. Something-Something-Card Members could get their tickets early.

Ruthless Editing Needed

Yes, they were forced to include a lot of stuff.

That’s all the more reason to ruthlessly edit the copy. Make every word justify itself.

Would the commercial message be any weaker if you left out a particular word? No? Then delete that word.

Example:

“Tony Bennett…and Lady Gaga…(MUSIC)….Don’t miss this once in a lifetime event as two icons join forces to perform their #1 album, CHEEK TO CHEEK.”

could have been edited to:

“Tony Bennett…and Lady Gaga…(MUSIC)….Performing their #1 album, CHEEK TO CHEEK.”

Would the listener have missed “as these two icons” or “once in a lifetime event”?

Doubtful.

But that one edit would’ve been a great gift for the voice over guy.

Toward the end of the spot we hear two Calls to Action: Go to the website for tickets, or call for tickets.

Even without a time crunch, giving more than one Call to Action is foolish.

In this case, probably 95% of interested listeners would go to the venue’s website.

Even people who planned to order the tickets over the phone first would go to the website to check on prices, seat availability, etc.

People who planned to call also would go to the website to find out the phone number for the venue, because:

1.  That’s what people do.

2.  They can’t understand the hurried, garbled phone number in the radio commercial.

Bottom Line

It’s an effective commercial despite its flaws because it succeeds in communicating the two crucial elements: Tony Bennett & Lady Gaga in concert…at the Hollywood Bowl.

Armed with that information, any interested listeners will go online, enter “Hollywood Bowl” in their browser’s search bar, and locate the website within one or two clicks.

The website will display dates, prices, seat availability…and the phone number to call for tickets.

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radio morning team membersRecently I’ve written about the importance of “honoring the verbal reality” on a radio morning show (or any daypart).

Every on-air team member needs to understand what the show is trying to accomplish at any given time.

Some team members, however, just don’t get it. In fact, some don’t know they’re even supposed to be team members.

The most extreme example I’ve ever witnessed was in the UK at a BBC regional station, where I was brought in to coach the breakfast show.

The presenter was very good, creative, inventive.

One of his guests demonstrated — on the radio programme — the art of tap dancing.

They brought in a board and a studio mic picked up the sounds of the guest…tapping.

In an inspired moment, the host decided that all the other guests on his show that morning would tap dance.

Callers, weather reports, traffic reports…He played tap dancing sound effects beneath each of them:

“Sally, this morning I’d like you to tap dance during your weather report.”

“Oh, okay.” And Sally would just go ahead and give the weather while the presenter added the SFX.

It was a bizarre, funny little bit, and everyone played along.

Everyone except the station’s traffic reporter up in the station’s traffic copter.

“By the way, Ian, if you don’t mind I’d like for you to tap dance while you tell us what the traffic is like.”

“No, thanks.”

What???

News Flash! Except for that one person who came carrying a plank of wood and wearing taps on his shoes, no one on the breakfast show really was tap dancing that morning.

The traffic reporter knew that, because the host had explained it to him off-the-air.

Why in the world did he say, “No thanks”?

He didn’t realize he’s not a traffic reporter. He’s (supposed to be) part of a radio morning show team.

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