Against the Law... If Someone Cares

against-the-lawBy John Pellegrini

This is another article on music copyright, however it is not an article about what is legal and what isn’t. This is instead an article on copyright enforcement. Perhaps I should rephrase that sentence and say that this is an article on the lack of copyright enforcement – specifically, the lack of copyright enforcement by the music industry.

Now let me start off by again restating the cold hard fact of the law that you absolutely cannot for no justifiable or legally acceptable reason use any music from your station’s music library in a commercial unless it’s from your station’s licensed production music library. In other words, it’s against the law to use famous pieces of music in commercials unless you’ve arranged to pay for the usage with the music publisher.

Having stated that, I would like to add the following comment, which is to say “good luck trying to get the music industry interested if you wish to report a violation.”

Have you ever wondered how the various music industry corporations and publishers keep track of violations of the above law? Have you ever wondered what it takes to report such a violation?

What you’re about to read is a story of an acquaintance of mine, whom for the purposes of this article and job security related anonymity issues shall be referred to as, “my acquaintance,” who tried to do the right thing and wound up wasting a lot of time and effort without any satisfaction. “My acquaintance” works in radio in another market somewhere on the planet Earth, has been in radio for a while, and knows the rules of copyright fairly well, having read articles in RAP by yours truly and others on the subject. This person related this story to me because they were pretty disgusted with their experience, and wanted to share their frustration. After hearing this story, I’ll have to admit I’m fairly disgusted too.

The acquaintance’s story begins simply enough. There are two clients in my acquaintance’s market who FLAGRENTLY break music copyright laws by using famous tunes in their commercials. One of which went so far as to re-write the song lyrics for their business jingle and had a local recording studio produce it. The other just runs the famous song under their spot even though the song has absolutely no connection whatsoever with the client’s business. The re-written jingle was produced by an agency; the other spot was produced by a competing radio station. In both cases, my acquaintance tried to raise the rule of law objections, and in both cases my acquaintance was told to shut up and mind his own business because he, “didn’t know anything about law” according to his own GM.

It was at that precise point that my acquaintance decided enough was enough. It was time to take action. He would do the one honest manly thing he could… he would have his wife turn in the offending spots. He copied the commercials on to individual CDs, and began to research how to turn in the offenders.

This is where the complications started to get difficult. Starting with the fact that about two years ago, the Harry Fox Agency, which was the music industry’s clearing house for mechanical licensing fees (what you pay to use music in your commercials) announced that they were no longer going to supply that service, and all queries about such matters would have to be taken up with an individual artist or their representatives. My acquaintance wasn’t sure if that affected reporting infringements, so he emailed them. He received a terse response saying that he would have to seek out the music publishers of each song to report the violations. Great. So where to begin? In the case of one of the commercials the search would not be that difficult because the song being used was by an artist that still was recording. So all that was needed was a search of the artist’s official website for my acquaintance to find a contact number at the artist’s recording label. At least, that’s what my acquaintance thought, but the problem was the current label wasn’t the label involved when the song in the commercial was recorded. And the artist’s current website contained no information on previous works or labels.

So my acquaintance searched the BMI and ASCAP websites to find contact info for the relevant recording time period (yes, those data bases as well as the one at SESAC are very detailed). From there, my acquaintance found the proper contact information for that particular song.

The second artist would prove to be more difficult because that person was recently deceased (a few years earlier actually), and their “official website” had been turned into a memorial and all related representation information was now removed. So again a search of the BMI and ASCAP websites were undertaken. Turns out this artist had multiple labels over the years, as well, and the info wasn’t quite up to date. Nonetheless, the correct information was eventually found.

By now, my acquaintance has spent nearly 5 hours of his own time (not at his station by the way but at home) just to find out how to report the violations. As it turns out, this would be the easiest part.

He now turned the matters over to his wife (after all he doesn’t want HIS name associated with this), who apparently had the patience and understanding of Job. No fewer than 10 calls (each) were made to various phone numbers listed for those two labels until she finally got a hold of someone who understood what she was trying to do and expressed interest in tracking down the violating advertisers. Those, by the way, were LONG DISTANCE calls, which my acquaintance paid for out of his own pocket. You can add another 3 hours of work to the previous 5 that were spent so far just to get the right person at each music label to simply make them aware of a copyright infringement.

Fortunately, hope sprang eternal because once his wife finally got hold of the correct person; they were very interested, if not excited, by the information. She was given addresses to mail the commercials to for the corresponding legal people to listen to and evaluate for infringement. The CDs were sent, with my acquaintance spending his own cash for postage. Okay, it was only about 80 cents an envelope… not exactly a bank breaker, as my acquaintance readily admits.

Weeks went by, and then months, then a year, then two years, and right up until the time that I wrote this article nothing has happened. The spots are still running. Follow up calls to the label contact people have gone unreturned. My acquaintance has run out of patience, and contacted me to write this story. As far as I’m concerned, this guy went way beyond the line of where most people would go to report a violation. He’s understandably frustrated with the situation, and has given up.

I’m left with more than a little dismay at the recording industry over this matter, too. Granted, this is only two examples, and perhaps other labels are more aggressive, but it begs the question: why should we uphold the rules when the rule makers seemingly don’t even bother to investigate, let alone penalize anyone who violates said rules? In the era when the RIAA is so aggressively seeking out teenagers who illegally download music off the Internet, why aren’t real music thieves like these two clients being pursued? Why are we told repeatedly that we can be sued for huge amounts of money, and then are given no interest by the labels when we try to do the right thing and report the violators?

For that matter, why are the labels making it so difficult to make these reports? Especially since the Harry Fox Agency makes it clear in their web info that you must contact the labels for all copyright usage information. After my acquaintance told me his story, I took a few hours of my own time to peruse the websites of about 15 popular and major record labels and found absolutely no information regarding how to report copyright infringements for any of their represented artists. Nor could I find anything on mechanical licensing of any of the music they represented. There was nothing that would be of any use to anyone wanting to even find out answers to questions regarding any form of music usage. At least five of the labels whose websites I visited had absolutely no information on how to contact their offices for any questions legal or otherwise. Remember, these are the fairly well known major labels, and not small start-ups.

But, boy howdy! You sure can find a ton of info on how to purchase music from them (i.e. how to give them all your money)!

Of course, shortly after my acquaintance related his story to me, it was announced that the RIAA had been successfully sued by a collective group of music artists over failure to pay royalties. How the hell can you “not find” Bob Dylan or Willie Nelson?! Who is the beneficiary of the RIAA playing mp3 cops?

As for my acquaintance, he’s given up the battle. As far as he’s concerned, he’s no longer going to put up a fight when someone brings in a spot with unlicensed music in it. He tells me that he personally won’t produce a spot as such, but if a client or an agency supplies one, he’s just going to put it on the air and say a quiet “f*** you” to the music industry each time it airs. As he put it, “I stuck my neck out and could have even lost my job to try and do the right thing, and I was completely ignored.” He tells me he doesn’t want recognition or anything for himself. He just expected that the offending advertisers would have at least received the famous “Cease and Desist” order that we’ve all been lead to believe would arrive post haste upon notification of any violations. Hasn’t happened, he says, and as far as he’s concerned, the music industry can go hang itself.

I don’t blame him. Personally I won’t go as far as he has; I’m still going to try and fight the good fight against copyright infringement. I’ll still warn clients when they want to run spots with illegal music. I’ll still do what I can to try to educate those who think they can do whatever they want because “we plays this on the air so we can use it anywhere we wants.” But, as many people who read this article might conclude, I have to wonder why I’m bothering… When the music industry doesn’t seem to have any interest in enforcing the rules that it created and expects us to conduct our business by, then why should we? When the music industry claims that we are responsible for reporting all violations, and then doesn’t even supply the means to make those reports, why should anyone care?

Maybe, just maybe, someone in the music industry will read this article, and realize that massive problems are afoot, and maybe, just maybe, that person will set off a spark that will ignite an industry-wide correction. Truth be told, it wouldn’t take much. In fact, any lawyer with enough education in copyright law could make a healthy living by setting up an agency to police these matters, with properly established procedures and contact info that people in the industry like my acquaintance could use.

I’m pretty sure we can all expect that to happen right around the time we complete the national metric conversion.

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