{"id":18110,"date":"2015-04-09T00:22:50","date_gmt":"2015-04-09T07:22:50","guid":{"rendered":"http:\/\/danoday.com\/blog\/?p=18110"},"modified":"2015-04-13T00:10:43","modified_gmt":"2015-04-13T07:10:43","slug":"copyrighted-music-commercials","status":"publish","type":"post","link":"https:\/\/danoday.com\/blog\/2015\/04\/copyrighted-music-commercials\/","title":{"rendered":"Using Copyrighted Music in Commercials – The Facts"},"content":{"rendered":"

This appeared in the latest issue of my
\nRadio Advertising Letter<\/a>.<\/em><\/span><\/p>\n

It generated so much reader response that I\u2019ve decided to reprint it here.<\/span><\/p>\n

Years ago, I wrote my first e-book because I kept getting the same phone call, week after week:<\/span><\/p>\n

“Would you please settle an argument\u2026?”<\/em><\/span><\/p>\n

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.<\/span><\/p>\n

In this issue, I’ll simply tell you what’s permissible and what’s not, usually without going into the details of “why.”<\/span><\/p>\n

(If I included the “why” for each one, it would require\u2026Well, it would require a book.)<\/span><\/p>\n

The type of copyrighted music we’re discussing is commercially marketed music.<\/span><\/p>\n

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.<\/span><\/p>\n

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

“Copyrighted music” also refers to copyrighted performances. If you want to use a recording, both the song and the performance<\/strong> are copyrighted.<\/span><\/p>\n

Is It Legal To\u2026<\/strong><\/span><\/h2>\n

Use a copyrighted song in a radio commercial without obtaining a license to do so?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

What if my radio station already pays BMI\/ASCAP fees? Won’t that make it okay?<\/span><\/em><\/p>\n

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.<\/span><\/p>\n

Have someone record their own rendition of the song, thereby creating a new recording?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

Rewrite the lyrics of the song to fit the commercial message?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

Use only an instrumental version of the song?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

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\u2026)<\/span><\/em><\/p>\n

Answer: No. They are paying for a license to play the music in their establishment. They are not paying for a broadcast license.<\/span><\/p>\n

Air a commercial for a musical performer\u2019s local concert, using recorded examples of his\/her music?<\/span><\/em><\/p>\n

Answer: I know you won’t like this answer, but\u2026No.<\/span><\/p>\n

Record a TV program\u2019s theme music and play it on your airwaves for regular use in a program or feature?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

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?<\/span><\/em><\/p>\n

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.<\/span><\/p>\n

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?<\/span><\/em><\/p>\n

Answer: No. Noncom stations and nonprofit organizations are subject to the same rules as everyone else.<\/span><\/p>\n

Is it legal if we use no more than 7 seconds of the song?<\/span><\/em><\/p>\n

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.<\/span><\/p>\n

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?<\/span><\/em><\/p>\n

Answer: And if all the other stations in your market jumped off a cliff\u2026.? No.<\/span><\/p>\n

If the client told us it was okay to use the music, are we legally protected?<\/span><\/em><\/p>\n

Answer: No. <\/span><\/p>\n

If the client provides you with documentation demonstrating that a license has been obtained, that’s different.<\/span><\/p>\n

But when’s the last time a client was able to show you such documentation?<\/span><\/p>\n

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?<\/span><\/em><\/p>\n

Answer: No.<\/span><\/p>\n

Copyright law adheres to what is known as “strict liability.” That means, among other things:<\/span><\/p>\n

A) Any party that is involved in infringing a copyright owner’s rights is liable.<\/span><\/p>\n

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.<\/span><\/p>\n

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.<\/span><\/em><\/p>\n

Answer:<\/span><\/p>\n

A) The question shouldn’t be “what can we get away with?”<\/span><\/p>\n

That’s like saying, “If I can break into my neighbors’ house and steal their valuables without getting caught, is it okay?”<\/span><\/p>\n

B) A victim of copyright infringement isn’t required to send you a Cease and Desist order. <\/span><\/p>\n

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.<\/span><\/p>\n

Most Radio People Want To Do The Right Thing.
\n<\/span>A Few Simply Don’t Care.<\/span><\/strong><\/h2>\n

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.<\/span><\/p>\n

“I’m willing to take my chances,”<\/em> the manager replied.<\/span><\/p>\n

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.”<\/em><\/span><\/p>\n

Someone was offering to pay him, and he figured he probably wouldn’t get caught\u2026so he was quite willing to commit an illegal act.<\/span><\/p>\n

If “not breaking the law” didn’t dissuade him, perhaps the principle of “Strict Liability” should have.<\/span><\/p>\n

You see, he worked for a very large radio company, which will remain anonymous. <\/span><\/p>\n

Let’s just say it’s the biggest radio company in the world, and recently it changed its name to iHeart Media.<\/span><\/p>\n

That guy wasn’t taking just his<\/em> chances. Everyone involved in a violation of someone’s copyright can be held liable \u2014 including the huge radio company that owned this guy’s cluster\u2026and that had very deep pockets.<\/span><\/p>\n

Here\u2019s my e-book about using copyrighted music in radio commercials<\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

This appeared in the latest issue of my Radio Advertising Letter. It generated so much reader response that I\u2019ve 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\u2026?” That’s all I needed to hear; I […]<\/p>\n","protected":false},"author":22,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":{"0":"post-18110","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-uncategorized"},"yoast_head":"\nUsing Copyrighted Music in Commercials - The Facts<\/title>\n<meta name=\"description\" content=\""I'm willing to take my chances," the radio station cluster manager replied. 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