By John Pellegrini
Well, you knew with a title like “The Final Word On Copyrights” that there would eventually need to be an addendum. I just didn’t think it would come quite so quickly. I’ve received numerous emails from people around the country with questions regarding specifics, and there were enough that I was able to put together this sequel. Some of these folks didn’t let me know if it was okay to mention their names or not, and some did. So I’m not going to mention some names (unless you want me to, in which case I’ll try to work you into another article at a later time… you know who you are). One of the people whose name I won’t mention because I didn’t hear back from them wrote:
“With most of the major car companies now using rock songs in national campaigns (Toyota, Cadillac, Chevy, Ford...) this question has come up: If a manufacturer, say, Chevrolet, has licensed a song for a national campaign, does that agreement extend to a local dealership, “Tom’s Hometown Chevy” or does the dealership need to have its own license agreement?
Recently, I did have this come up with a Chevy dealer. I had missed the National campaign and when I received the local spot from another radio station, I immediately called the station. The response from the Production Director was, “Chevy’s using it nationally, so the (local) client asked me to put a bed together using that song.” I had the General Manager call the client. He was adamant that he had the right to use it, though, to my knowledge, we have never seen written proof...”
You’ll never see written proof because none exists. There is one, and only one way for a car dealership to have the right to use the music, and that is if the car manufacturer supplied a copy of the music to the car dealer with a letter stating that the auto manufacturer has purchased the music for their entire North American dealership network’s usage. That’s right, the car dealership must provide the music bed… YOU CANNOT USE THE MUSIC FROM YOUR STATION LIBRARY! Why? Because the agreement that is traditionally signed off upon by the music publishers states that all such extra agreements with local dealerships must use the exact music bed that is paid for in the contract. That means the dealership has only paid for the right to that exclusive cut, and that exact same exclusive cut must be supplied to all other entities involved in the agreement. Plus, the dealerships must all sign waiver contracts stating that they will use only the cut supplied on the CD (or tape) AND NOTHING ELSE.
Your dealership buddy is lying his head off, and your station along with the station that supplied the spot are going to get into serious trouble when the composer of the music (or his or her representatives) realizes that they’re getting short changed by not getting paid for this unauthorized use of the music. Want to end the problem right now? Turn the dealership and your competitor in. I’m serious. Just send a copy of the commercial along with the offending party’s address and information to the song’s publishing company, and they’ll likely get a nifty C&D order (Cease and Desist) within a few days.
I know of several GMs who are under the completely mistaken impression that they can’t be held responsible for commercials that are broadcast, but in these cases it’s very easy to prove that the stations involved definitely did know that they were in violation. It is also very easy to prove that, as I mentioned in the previous “Final Word On Copyrights,” ASCAP, BMI, and SESAC all state quite clearly that ignorance of these regulations is no excuse, and YOUR STATION is responsible for policing these matters. Which means YOUR STATION is as responsible as the agency and the dealership when the composer or copyright holder decides to sue all the parties involved. The idea that the station cannot be held responsible only extends to copy content, so that you won’t be sued for outrageous claims being made by those illegitimate medical cure and fraudulent investment commercials your station runs. Copyright violation over music being used in a commercial is an entirely different matter, and your station is responsible for any copyright violations in commercials that you broadcast whether you produced them or someone else does. ASCAP, BMI, SESAC, and NMPA (The National Music Publishers Association—the organization that oversees The Harry Fox Agency) all state this fact plainly and clearly, no matter what your corporate lawyer thinks. Keep in mind also that most corporate lawyers have little or no education or background in copyright law. And since ASCAP, BMI, SESAC, and the NMPA are the ones who set and determine the rules over music copyright in the first place, their pronouncements are the ones I’d consider to be correct.
While we’re on the subject, here’s another one of my favorite copyright violations: nightclub tribute bands. You know of them, bands compiled of mediocre musicians that aren’t capable of doing anything original to save their souls. So they put on makeup and play KISS music or dress up in spacey outfits and play Pink Floyd music. A step below cover bands, if you ask me, because they’re making money off of one specific group’s efforts. They’re a “Tribute” to the original band. And hardly any of them ever pays royalties to the publishing companies for permission to use the music. Ditto the numerous “Elvis” impersonators around the universe.
So when a sleezeball nightclub owner books one of these sleezeball “tribute” bands into his club and then demands that you put a spot together featuring the music from the original bands… guess what? You’re in violation, and you along with said nightclub owner and said tribute band could wind up getting sued.
“But the nightclub owner says these guys have permission,” is the common protest. If they do (and they rarely do) it is only for the performance of the music. That means when they’re live on stage only. And that only means the band itself. Your station does not have the right to use the music in a commercial promoting these bands, nor does the nightclub owner, unless a separate agreement has been reached and signed involving the nightclub owner and the music publishing company. I actually had one nightclub owner tell me “well, these guys met Gene Simmons once, and he said it was cool”. Oh yeah, that will hold up in court. Law School books are full of the word “cool.” The Supreme Court recently handed down a ruling that said the judgment of the court on the issue was “cool.” Unless said band and nightclub owner can produce a copy of the validated contract signed by all parties and the publishing company involved, you are in violation. And the “cool” part is, by the time the case goes to trial, the band will have broken up and the members will have disappeared. Also likely the nightclub owner will have by then gone to prison for drug trafficking (or something like that), so YOUR STATION will be left holding the money bag. Isn’t that Cool?
Another nightmare in the copyright challenge is the Event Promoter. Whether it’s an auto show or a motorcycle show or a boat show, many small promoters who do one event like this per year sometimes like to use famous old rock songs for their events. One person in particular whom I recall doing this used to promote his event with Arlo Guthrie’s song, “Just Want To Ride My Motorcycle.” I had many arguments with the guy because he had no permission to use the song from the publisher or Arlo Guthrie. His response was (and I quote) “I paid for this music.” How did you pay for it? “I paid the radio station to make the music bed.” The radio station involved made the bed for the guy nearly 20 years earlier and technically speaking hadn’t charged him for the music… they charged him for the production time in the studio while they made the bed. Of course, the people at the station who did the bed at that time were no longer employed there when I was dealing with him. But as far as he was concerned, he’d “paid for the music.”
I asked him point blank: Did you pay Arlo Guthrie or his publishing company for the rights to the music? He replied: “No. You guys do that.” Meaning us at the radio station. He further stated, “You guys are the radio station, so it’s your responsibility to pay for the music I run in the commercial.” Wrong buddy. I went around the block a hundred times or more with this guy over a two-year period before I finally got the sales rep, the GSM and the GM to back me up that the spot wouldn’t run with the music on our station. We were, apparently, the only station that put up a fight on the music… everyone else ran it without care. I don’t know what’s happened with that promoter since then, but he might very well still be running that music bed in total violation. Arlo Guthrie and/or his publishing company could sue him for a ton of money for every single year he’s used that bed without permission. All it takes is for someone to turn him in. Again, the idea that the station cannot be held responsible for the commercials run by the advertisers only addresses content, and not copyright violation.
Which leads us to the next email question:
“With regard to ASCAP license coverage, what is the definition of ‘commercial jingle or station promotion’? In my lexicon, there are two types of jingles and station promotions. Those with sponsors tied to them and those without. For example, does the law distinguish between me using Chicago’s “25 or 6 to 4” in a daily 15 second “College Football Countdown” sweep with a sponsor tied to it and using, say, Aerosmith’s “Walk This Way” for a general station ID with no sponsors attached? Or.... say I use the Pretenders’ “Middle of the Road” in a general use promo for our Midday Show. (We’re a talk station.) No sponsors, just a “Coming up on the show today...” kind of thing. Outlawed? Oh yeah, and what about.... Song Parodies: No way Jose without permission? i.e. - Is the spirit of the law that the radio station itselfis deemed to be a commercial client just as much as say Pringles or Jiffy Lube and therefore must pay to use ASCAP music for any usage including its own non-sponsored self-promotion (ID’s, liners, general use promos)?”
Using a song for a show opener (which is kind of what you’re hinting at with the Chicago and Aerosmith example) is okay. Using it in a promo for the show with a commercial sponsor is not. But, and this is the goofy part, it is highly unlikely that you’ll hear any rumbles about it. That’s because most artists are aware of the fact that their music gets used by stations for promos and such. I can’t count how many talk shows and sports shows are using Iggy Pop’s “Lust For Life” these days. If Mr. Oostberg were to suddenly decide that he didn’t like all these conservative windpipes using his music, he would have the right to issue a million C&Ds to the stations. But so far he hasn’t. Ditto Rush Limbaugh’s usage of the Pretender’s “My City Was Gone.” Reportedly, he asked Chrissie Hynde for permission to use the music and she said it was okay with her. It might be a different story, however, if Rush were to sell a “greatest moments” collection of his show with the music included. That would be a case of him making money off the use of the song, and he’d have to pay and/or obtain permission for this usage, regardless whether the collection was intended for charity purposes or not. Have your air talents done the same for their show music?
Song parodies are another category. Technically you must have permission regardless. However, the only time anyone goes after someone who doesn’t get permission is when they sell the song parody for profit. In other words, if your song parody suddenly became a hit record on its own, and you started selling copies at all your local record stores, you’re gonna get sued. Again, whether you’re making money for yourself or a charity doesn’t matter; you must have permission. If you do it exclusively for station use and don’t release it to the general public, then you’re probably okay. Though I wouldn’t count on anything “probable” these days.
Technically speaking, the radio station is a client, and you don’t have the right to use any of your playlist music, or any other music that isn’t in your production library in commercials or promos. But, as I mentioned in the first article, you really won’t get in trouble unless it can be shown you made a large amount of money by using the music. From a radio standpoint, promos are a free part of the overall sponsorship of any given programming segment, and they don’t always have sponsors tied into them, so it’s unlikely that anyone would complain. However, if you use the music from the promo or show segment in a commercial for the sponsoring client, then you’re in trouble.
Next, from Jeff Caylor at Focus On The Family we have:
“…a question regarding something that wasn’t addressed: concert promotion. Did any of your research touch on this aspect of commercial production? Just curious.”
I didn’t touch on concert promotion because that’s one of the areas where it’s generally accepted that you must use an artist’s music to promote the artist’s concert. However, that leads me to another situation where a violation could occur, and that’s when a nightclub or bar tries to get in on the act with the concert excitement. Here’s how it typically works: a nightclub owner or manager wants to advertise the fact that their place is the perfect place to hang out after a concert. Fine and dandy. But, they have absolutely no right to use the featured performer’s music in their commercial. I’ve had some nightclub owners say, “Hey, I’m promoting the concert so I should be able to use the music, after all I’m gonna play this artist’s music in my bar all night.” Nope. You’re promoting your bar, and you’re using the artist’s music to tie-in to promoting your bar. The artist is getting nothing in return, while you reap the benefits from his concert, and that’s a violation.
Next, from Mark Marguiles of BENMAR Radio, we received this question:
“I have been told by more than one Production Director that there is an exemption, if you use 6 seconds or less of a music cut. I’ve never heard of such a thing. Did you run across this, AT ALL, in your research?”
What the Production Directors are referring to here, is an alleged “agreement” between the PROs (AFTRA, BMI, and SESAC), and deejays, hip-hop artists, rappers, and other assorted musicians whom employ audio cuts from other sources in their music. I don’t know if NMPA is involved in this or not. I’ve never seen the ruling itself, but I’ve had it described to me as Mark mentions it above. The important thing to remember, however, is that this is an agreement made by the PROs (Performance Rights Organizations) for usage in music, and as I pointed out in the original article, THEY HAVE ABSOLUTELY NO AUTHORITY TO LICENSE MUSIC FOR COMMERCIAL PURPOSES! The PROs also state quite clearly that this “agreement” is for musical purposes only, not for synchronization right in commercials. Was that clear enough? If not, then here it is again: your ASCAP, BMI, and SESAC agreement does NOT give you the right to use any audio source from any location in a COMMERCIAL. PERIOD! Synchronization rights for commercials are an entirely separate entity that is not covered by the alleged “6 Second Rule” or any other rule you can dream up, and therefore must be negotiated separately with the song publisher. Any Production Director who assumes that the 6-second rule applies to commercial usage is in for a rude awakening because we all know what happens when you “assume.” As I also mentioned previously, if you want to get a competitor in the business into trouble, just send in a tape copy of the spot to the publisher.
And that’s the crux of this biscuit, my friends. It only takes one person to send a tape of the commercial in violation to the publishing company to get the ball rolling. What happens next you ask? Your station will get a C&D delivered, along with a request for a copy of the program log detailing exactly when and how often the violating commercial aired. Your station will likely also have to furnish information as to who produced the commercial, which client demanded the music, and the names of everyone else who should have known better. You personally will probably not know about any of this; your station’s GM or corporate lawyer will be handling these matters. Then, it’s all up to the copyright holder to decide how much compensatory damages he or she or it (in the case of a conglomerate) is entitled to receive. Sometimes no further action is taken after the C&D is issued. However, if it can be proven that the violation occurred for an extended period of time such as weeks, months, or even years, then huge amounts of cash can be reaped. Also, many artists (especially estates of deceased artists) are learning that they can collect a nifty chunk of cash by vigorously defending their properties in suits like these. So they’re really starting to pay attention to how their music or other audio is being used by radio and TV stations. Stephen Speilberg reportedly has a growing staff of lawyers and legal assistants at Dreamworks whose sole job is to catch any and all world-wide unauthorized usage of images and audio clips from his movies in any media from radio and TV to Internet and video games—even print! A large number of other film and music industry people are reportedly starting to sign on with his team’s services, because they’ve developed a reputation at being tenacious and ruthless. Do you really want to take a chance on getting caught? Remember, in these enlightened corporate times, even though your GM or GSM or corporate lawyer tells you it’s okay, they aren’t the ones who are going to take the fall when the poop hits the fan.
Finally, from Ty Ford, we have this comment:
“I really enjoyed your piece on copyrights. The only thing missing was the mention of unauthorized use of drops from movies and TV show audio soundtracks. This material is also protected by copyright.”
Absolutely correct Ty. Anytime you lift audio from TV or movies you are in violation. Even if the material comes from promo tapes that the Hollywood studios send out for upcoming releases. Those are meant to be run exclusively in their entirety as a programming feature and not to be used for drops in other programming purposes.
“What about the drops I get from my show prep or production prep services that I subscribe to?” you might ask. If (and this is a really BIG IF) the show prep or production prep service has cleared permissions with the movie studios and TV studios involved, then everything is likely ducky. But, as I pointed out, that’s a really big IF. Reportedly, and I need to point out that I have no direct proof here, I’m just going on rumor, some (not all) of the show prep and production prep services don’t bother with seeking permission or paying for the usage rights on the movie drops that they provide. Which doesn’t give them the right to re-sell the drops to radio stations, and doesn’t give you any rights whatsoever to use them. However, that’s a can of worms I don’t want to deal with, and you’re just going to have to figure it out for yourself.