By John Pellegrini
Recent queries from production folk regarding music copyright for commercial use have prompted me to once again do some research that finally gives direct proof on the copyright dilemma once and for all. The queries were all of the same nature, which is that some naive shmuck in the station organization, a salesperson, a GM, or in one case a corporate lawyer, all claimed that because the station pays licensing fees to ASCAP or BMI, then they are entitled to use the station’s playlist music in commercials. This is absolutely false, and here is how you can prove it with certainty.
Each of the three Performance Rights Organizations (more on this in a bit) has their own website that can answer all your copyright questions. ASCAP, the American Society of Composers Authors and Publishers at www.ascap.com. BMI, Broadcast Music Inc. at www.bmi.com. And SESAC, the Society of European Stage Authors and Composers at www.sesac.com. Each website has a FAQ section on music licensing that is quite helpful, though only ASCAP answers the exact question about commercial usage. Suffice to say that BMI and SESAC would say the same thing if you ask them (which I did). Here’s the exact wording from ASCAP’s website on using station playlist music in commercials:
“The ASCAP license does not provide the right to record copyrighted music, or change the lyric of a copyrighted work and use it in a commercial jingle or station promotion. These are known as “mechanical” and “synchronization” rights and you should deal directly with the copyright owners for permission to record music or change a song. You may also want to contact the Harry Fox Agency at (212) 370-5330.”
I wish the statement was a little stronger, but the fact remains that the ASCAP license does not cover the right to use your station’s playlist music in commercials. Neither does the BMI license or the SESAC license. Here’s why: ASCAP, BMI, and SESAC are PROs, which stands for Performance Rights Organizations. The word Performance is the hinge upon which this question rests. Performance of music, which for our (radio) purposes, means the right to broadcast the music on a radio station in daily programming. These licenses specifically do not cover the usage of music in commercials. That is a separate agreement and must be negotiated by separate entities, as mentioned above.
Why are they called Performance Rights Organizations? This dates back to when most radio music was played by live bands in the stations, or live bands over the networks. The composers of the songs were concerned that they weren’t getting paid by the bands or the radio stations for using the songs. Even though it’s been decades since bands performed live on a daily basis in radio stations, the term “Performance Rights” is still used thanks to that splendid legal tool known as inertia. Lawyers never want to change their legal jargon no matter how outdated or obsolete. This allows them to prevent you from being able to interpret the law yourself.
From an email query to BMI, I received the following information:
“The Harry Fox Agency provides the following services in the United States on behalf of its publisher principals: Licensing of copyrighted musical compositions for use on commercial records, tapes, CDs and computer chips to be distributed to the public for private use. Licensing for use in TV and radio commercial advertising.” With an added note to visit the Harry Fox Agency website at www.nmpa.org/hfa.html.
From the HFA website I gleaned the following:
“The recorded use of music in combination with visual images (“synchronization”) does not come within the scope of the compulsory license provisions of the U.S. Copyright Act. Licenses for use of music in commercial advertising must therefore be negotiated on an individual basis between the copyright owner and the prospective user. * In this regard, HFA acts non-exclusively as an intermediary for many of its publisher principals in negotiations with producers, facilitating communication between the two parties, which often leads to the implementation of a license agreement. HFA synchronization licenses can be issued for global use, in addition to domestic use.
“It is important to note that the use of copyrighted musical compositions as part of commercial advertisements in any broadcast medium (including radio, TV and closed circuit systems such as in-flight programming) must be licensed by the publisher.”
HFA does not set rates or determine terms of any such licenses it issues on behalf of its music publisher principals.”
“A broadcaster’s performing rights license (ASCAP, BMI, SESAC**) does not extend any commercial synchronization rights to the license.”
* Underlines added by author
** Added by author
So, to sum up and clarify once again: your ASCAP, BMI, or SESAC license grants you the right to broadcast the music they represent as part of your station programming and nothing else. They do not allow you to use music in commercials. That right falls to synchronization organizations like the Harry Fox Agency. I use the word like, because I know there are others, but I don’t know their names, and ASCAP, BMI, and SESAC only mention HFA in their website information. However, HFA is a good place to start if you’re interested in obtaining synchronization rights, and if they don’t have the music in question, they’ll direct you to who does.
Now, on to the tricky statement. The ASCAP information came from their radio section FAQ on their website. However, at the very beginning of the radio FAQ, there is a statement from ASCAP that, on the surface, appears to contradict the radio statement. Here’s what it says:
What does the ASCAP Radio License give you?
The ASCAP Radio License gives you: The right to perform music in commercials and jingles.
There were other points, but this is the one we’re concerned with. This is very tricky because it involves archaic jargon that ASCAP hasn’t changed in decades. I emailed ASCAP for clarification on this issue because this is precisely where most radio stations get it wrong.
David Bander, ASCAP Assistant VP Director of Radio Licensing phoned me after I emailed to clarify. He said that the ASCAP right for commercial usage means that you may broadcast a commercial with ASCAP music… provided that the music usage has been negotiated and authorized by HFA. The people who produced the commercial, whether it’s an outside agency or an in house client, must still obtain permission and pay for usage through the Harry Fox Agency. However, HFA only obtains authorization to use the music in the commercial. ASCAP only says that if that permission has been granted then you are cleared to broadcast the commercial in accordance with their license.
Let’s take the Nissan commercial that uses Baba O’Riley by The Who as an example. Nissan or their advertising agency negotiated a monetary synchronization fee with The Who’s publishing company through the Harry Fox Agency for the rights to use the song in their commercial. However, that only covers the right to use the song in the commercial. Your station’s right to broadcast the commercial with the song in it comes under your ASCAP, BMI, or SESAC license.
“Wait a minute,” you ask, “does that mean if an agency sends us a commercial that has a well known song in it that isn’t covered under our license agreement with ASCAP or BMI or SESAC, we could get in legal trouble for airing the commercial?”
Example: One bright and sunny day you find some agency has sent you a spot that has a song that’s licensed under SESAC. Most USA radio stations (I can’t speak for our international readers) have license agreements with ASCAP and BMI only. Technically speaking, you may not air the commercial with the SESAC song. All three organizations state quite clearly in their website FAQs that it is YOUR STATION’S responsibility to know this, and pleading ignorance of these licensing agreements is no excuse. In other words, if you get sued, you’re on your own. They also state quite clearly that the only way to avoid these problems is to make certain that you’re fully in compliance with their licensing agreements (that means all USA stations should have agreements with SESAC as well as ASCAP and BMI).
Here’s another interesting point: your ASCAP, BMI, or SESAC license does not give you the right to use music from your station playlist in commercials promoting your station. You know that TV campaign your station is running with cuts from the hottest bands on your playlist? Guess what… you don’t have the right to use any of their music in your commercials (or even your in-house on-air promos). However, the folks at ASCAP, BMI, and SESAC all agreed that the chances of the music publishers taking you to court over this are slim to non-existent since you’re promoting the fact that your station plays these artists’ music. How else are they going to get people to listen to these artists? But make no mistake, ASCAP, BMI, and SESAC licenses do not cover this use of music rights.
Remember, the Performance Rights Organizations (ASCAP, BMI, and SESAC) consider the word “performance” to be the same as “broadcast.” And they term the usage of music in commercials as “synchronization.” Also, please keep in mind that we are not in any way discussing “production music libraries” or other music sources that stations pay leasing fees to for usage rights in station produced commercials. Believe it or not, I’ve actually heard from some radio folk who’ve confused the two separate entities.
By the way, something else to keep in mind: ASCAP, BMI, and SESAC all have field agents (not sure if that’s the correct term) who routinely listen to radio stations and TV stations around the country to catch violators. However, the majority of copyright infringement suits come from the owners of the copyright themselves. ASCAP, BMI, and SESAC are merely reporting agencies in these instances, and the suit and any damages demanded are entirely at the discretion of the copyright holder.
So you finally have it… direct word from the organizations themselves that any use of recorded music in commercials that hasn’t been approved by HFA or a similar synchronization group is forbidden and can get you into a huge mess of legal problems. Each website mentioned here has their own FAQ section, and you can also email them for specific information regarding these issues. The bottom line is the next time some smart-ass as your station says, “We can use any music we want in our commercials because we have ASCAP, BMI, or SESAC licenses,” you can send them right to the source to prove them wrong. In fact, you might want to go a step further and copy off the exact wording about these issues from the above websites and put them into a memo that you can email or hand out to all your station personnel. Make certain that your station GM gets to see the memo first so that he or she is on the same page with you on this issue. Of course, if they’re the ones insisting that your station’s ASCAP, BMI, or SESAC license gives them permission to use any music in a commercial, you might want to give them this article, or at least the highlights of it, with a quick side trip to the above mentioned websites.
Now, before you or your station’s managers get all indignant and email me loads of complaints about how having to pay for all this music is a rip-off, let me spare you the trouble by stating that I don’t care. I don’t make up the rules; I just report them for those of you who think they don’t apply to you. Sorry if that’s mean sounding, but these are the licensing agreements that are the standard in the broadcasting industry. You don’t have a choice if you want to continue broadcasting music of any kind except to agree to the terms. Complaining to me about this issue will be as effective as complaining to Nelson Mandela about your town’s school board. Except that unlike Mr. Mandela, I won’t verbalize any sympathy, feigned or otherwise. The fact is, the only way many songwriters ever get paid for their hard work is through these licensing organizations. Yes, hard work. Ever try writing a hit song yourself? Why should your station and or clients profit for free using the recognition factor and public enjoyment of their work? Especially when you’re using the composer’s works to get people to identify your station or client’s products and services with that particular piece of music. Where I come from, that’s called stealing, and many forms of theft are usually punishable with imprisonment. In this case, you’re lucky because you’ll only get sued by the owner of the song’s copyrights. And, as with all those who’ve done it before you, you will lose the lawsuit. I’ve written it here before, and I’m writing it again, there has never been a case of copyright infringement of this nature that has ever been won by the defendant. Don’t count on being able to break that streak. If you still have a problem with it, the above mentioned websites are where you can email your complaints. And I’m sure you’ll get a very interesting response.