Q It Up: Can I use Lady Gaga's new song under my commercial? - Part 2

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And here is Part 2 of this illuminating and, we hope, helpful edition of the RAP Q It Up on music copyright infringement. If you have follow-up comments, feel free to send them to editor[at]rapmag.com. This is a topic we’ll probably keep open for discussion indefinitely.

This Q It Up does not intend to determine exactly what the copyright laws say you can and cannot do. We are simply looking for an account of what producers perceive the laws to be, and for stories about infringements that resulted in legal action. The responses below are not “the law” as reported by Radio And Production. While it’s pretty obvious what you can and cannot do, if you and your station/company have a question or concern about the use of copyrighted music under your productions, you should get your definitive answer from a lawyer.

Q It Up: What is your understanding of the laws regarding the use of unlicensed, copyrighted music under commercials and promos, and how do you deal with these requests? In markets small to large, some people, even in management levels, believe they have the right to use music from their playlist under commercials and promos because they pay ASCAP/BMI for Performance Rights. Many have never heard of Synchronization Rights. But it’s the gray area that gets most debated. Is it okay for clubs to use popular music under their spots? Has a club or station ever been sued for doing so? Is it okay for stations to use songs from their playlist under a promo that has nothing to do with the artist? Has a station ever been sued for doing so? Do you know of any lawsuits involving copyright infringement we can share with clients, sales and management to use as examples of why it’s best to obey the law? Is there any such thing as a “7 second rule” allowing legal use of up to seven seconds of copyrighted music? To our non-US readers, most of what we’ve printed in RAP on this subject has come from the perspective of United States laws and practices. How is this situation dealt with in your country? Indie producers, are things any different for you?

Dave Spiker [davespiker[at]aol.com]: It’s been hammered into my head for years that using “any ol’” music under a spot is a no-no. So I use production music and pay my fees as I’m supposed to. The only gray area for me are those event spots where I’m promoting “So-So Famous Music Artist” in concert and use So and So’s music in my spot. I can’t imagine how they would possibly sue me for using their music to promote their appearance. And yet I don’t have any written permission from the artist, their record company or the Harry Fox Agency (et al) to be able to use it for that purpose. Wondering if that would make some hungry hot-shot copyright lawyer salivate.

Anonymous: For requests to use copyrighted material for commercials, I simply tell the salesperson, when the client provides written proof that they have acquired synchronization rights for the music in question, I will incorporate it into the spot. Until then, we will proceed without the copyrighted material.

Gary Michaels [michaels[at]wkoa.com], Wask, Wkoa, Wkhy, Wxxb, Espn Radio, Lafayette, Indiana: Boy, what a great question... and one that’s close to my heart and about which I could write tomes. I’ll begin with radio since that’s my full-time gig. My policy has always been to follow the letter of the law, and I’m aghast at how ignorant of copyright law many broadcasters are. Above all I will protect the broadcast license of my company and my own pocketbook, so no hit songs make it on my spots. In fact, the first thing I cover with new sales reps is how anal I am about not using copyrighted materials in commercial spots, and I educate them in what constitutes a violation. Not only will your competition be the first to turn you in, but being located between Chicago and Indianapolis, music people have heard spots that violate the law and the repercussions have been swift. So yes, there is a risk and it’s reared its ugly head here several times.

 I love doing parody spots and parody. Being one of the seven tests for ‘Fair Use’ that a broadcaster can readily use, I’ll take advantage of that... but the lines can be pretty blurry even when doing parody. I’ll err on the side of the artists/labels. We often receive spots from other entities I believe violate copyright, and that’s where the soul searching begins. Is the burden of proof with me or with the person/entity who produced it across town or outside of the market when I strongly believe they haven’t cleared the use with the labels/publisher? Again, it’ll boil down to whether I believe it risks my company’s license.

I also do freelance video for a local high school music department, and I’ve wrestled with copyright to the point where I could write a book about my experiences in ‘trying to do it the legal way.’ In compiling videos for end-of-year activities, I tried (and tried and tried) to get clearance to use hit songs as background audio. I have a pretty good grasp of how copyright works and from whom you need clearance, which is the toughy... tracking down the exact person from whom you need clearance. My experiences tell me the job is virtually insurmountable. Unless you have ‘thousands’ of dollars to use in clearing songs, publishers and labels won’t bother to talk with you, and music clearance service companies will smile but ignore you just the same. I have scores of rejected faxes, emails and calls from labels and publishers, to whom we’re just small potatoes.

In my quest to clear songs for a high school video that would be distributed to 100 students for absolutely no profit, I found the only alternative is to use buy-out music beds. I had one publisher who loved what I was doing and would make a deal... all the others couldn’t be bothered with me. I will always follow the law but, as a general rule, publishers/labels make it virtually impossible to get clearance for small projects. The profit’s not big enough. Do I follow the rules when doing video? Absolutely! Do I blame others for stealing intellectual material and violating copyright? Absolutely... NOT! The labels/publishers make the process so tedious and expensive that other small project guys like me may decide to ‘not worry about it’. I won’t condone violation, but I understand it.

Okay, off my soapbox now and feeling better.

Jim Kipping [jim[at]jimkipping.com], Emmis Radio, Austin, Texas: Before moving into FT creative, a company I worked for some 18 years ago, was successfully sued when a jock just put some “music” [under a spot] that was in the free CD bin in the break room. Those CDs were the discarded CDs that the PDs never aired. The bad news is that the song the jock used was a local band. The station was sued and the band won. Ever since then, I have had a policy in place about using licensed music in commercials, and the only time it is allowed, and for us that is when a band is doing a concert or CD release party promoting THE BAND not the advertiser. No, tribute bands didn’t count; so no Van Halen music for the local club spots. Because of this it has not been an issue. My current company completely agrees and appreciates the lack of law suits that can result from doing this activity. We budget and spend quite a bit of money each and every year on licensed music libraries (AMP Music, and 5Alarm Music being the biggest libraries), and that more than covers us for music needs in spots.

Here’s a quick side bar. The copyright holder for “God Bless Texas” from Little Texas, who just so happens to be in town, called me and asked for the agency of record and prod house that did a Miller Light spot. It seems that their jingle was just a bit too close to the song and they were perusing legal action. So while I had them on the phone I asked him a hypothetical: “Say a local advertiser wanted to use that song in a spot, how much would it cost?” The lawyer on the other side of the conversation asked, Radio or TV? Radio. How much of the tune? 15 sec hook. Term of use? 13 week flight. “Sure,” he says “we’ll do that for $10,000.” That’s a real world quote from a one hit wonder. I share this when every newbie AE walks in with an order for spots. We just don’t do it.

So when it comes to your AE or management saying, “it’ll never happen to us,” or “we have the legal right to use it,” don’t bet on it. It DOES NOT give you the right to use it because you pay ASCAP/BMI; that’s for the music you play on air, NOT commercial content. Let me also tell you that if it does happen to you, who do you think will take blame? It won’t be upper management. It’s your job to know the rules and follow them, and if you are the one that engineered the spot… just duck and cover.

Anonymous: We approach this subject from 2 points. First the legal aspect and the second in terms of product integrity.

We will refuse to put any music in a spot that isn’t from one of our licensed production music libraries unless it is a spot or promo that is promoting the artist either for an album release or upcoming performance or event/appearance and the like.

If a local advertiser wants to use copyrighted music and is insistent, we then will request affidavits from the advertiser stating they have permission from the copyright holder to use it. That pretty much stops the discussion. Club spots are about the only grey area due to their paying the licenses, but even then I try to keep it at a minimum.

Another wrinkle to this whole discussion is that of Cover Bands or “Tribute Bands.” Occasionally we’ll have a tribute band want to advertise an upcoming performance, and they’ll want to use the original artist’s music as a bed. My response is “Nope.” If you want to get me a sample of the tribute/cover band covering an original tune, I might use a segment of that in a part of the spot, but again I’d keep it to a minimum and try to find a sound-alike from our licensed library.

Aside from the legal aspect, we don’t like to use copyrighted music because our music is part of our product and brand. We don’t want to confuse/annoy a listener by having them think they’re going to hear their favorite tune, only to have it turn out to be a commercial for auto-glass replacement. We work hard to keep the branding of the station and music out of the commercial mix. Tough to do, but we do our best to maintain the integrity of our product.

I’m fortunate to have management be pretty clear on the policy and back me up. But like anything else, I’ve found that if you have a policy and apply it consistently, over time, sales/promotions knows what the answer will be and they tell the client what the answer is long before I even see a production order or script.

Anonymous: What a GREAT question! Thanks for bringing this up. I, too, will have to join the ranks of the anonymous, not to protect myself from retribution, but to protect the identity of some of the most well known Program Directors in Canada, including a former Program Director of the Year. I have been in the production game for more than 25 years, and I have heard them all from salespeople, management and clients.

I have 2 stories to tell you. The first was early in my career, back in 1985. The station I worked for put together a song to save the professional sports team in our city. The re-written lyrics were sung to the song “When The Going Gets Tough, The Tough Get Going” by Billy Ocean. It basically was to get people to start buying season tickets for the team and help them out. After it aired for a couple of days, the station got a letter from Billy Ocean’s management/lawyer with a cease and desist order. This set the stage for most of my career to tell anyone who wanted to use any copyright music that we can’t. But about 8 years ago, a bar owner in town wanted to use the latest top 40 songs in his spots because “I’m playing those songs in the bar every night.” Right! He got the “you gotta be kidding me” look. So, he went to all the record reps in town, and one of those guys actually signed a letter saying they allow him to play tracks from any of their artists in his commercials?!?!? He comes back and says “See, I have their permission now.” I tried to explain that this record rep has about as much authority to give him permission as the guy who makes sushi down the street. But he went above my head to the PD and GM, AND THEY AGREED WITH HIM!!!!! I am positive it had nothing to do with him spending $100,000 a year. They said, well he has a letter, so we are covered, you don’t have to worry about it. Can you believe that? I couldn’t. I figured this wasn’t the mountain I wanted to die on, so I gave in. It lasted about 6 months, and then all of a sudden… we just started using generic b/g music from our production music library on his commercials. I never did find out why, but I have a few guesses.

Basically here are the rules (as I understand them)… If a band is coming to town and you are producing a spot for the bar that is bringing them to town, you can use their music. If you are doing a promo where you are sending listeners to see the band somewhere, you can use their music. And that’s about it. Even, legally, those 2 conditions are gray. You don’t have the performance [synchronization] rights to use the song, or the songwriter’s permission. But you can’t use Lady Gaga behind a camera store’s commercial because the owner likes Gaga. Not two bars of the music, not 8 seconds, NOTHING!

Walter Wawro [wwawro[at]wfaa.com] WFAA-TV, Dallas, Texas: At WFAA-TV the answer to using unlicensed, copyrighted (UCM) music under station produced commercials is a firm NO. As far as PSAs, station promos, and live programming, well that’s a “no, but” situation.

I’m guilty since I’ve put together on air promos that have used UCM.

Occasionally our community relations department, responsible for PSAs and community outreach with non-profit organizations has this issue. For example, we annually support with airtime and promotional assistance a community resource called “Vogel Alcove” which provides health and developmental services to children of homeless families. Their annual fundraiser is held at the Meyerson Symphony Center and is a really big thing. In fact, Vince Gill appeared a couple of years ago, and the question arose about putting something by Vince Gill (in this case his song “Next Big Thing”) in our on air PSA for the event. In this case I felt it contributed to what the spot was supposed to accomplish. No, I did not have permission from the laundry list of entities to use the tune. I deal with situations like this on a case by case basis. In TV there’s a saying “see dog, say dog.” In this case, all tails wagged for Vince! Would the non-profit back me up if this were questioned? I doubt it.

But when it comes to programming, here’s another issue. We do a morning TV show, “Good Morning Texas.” Twice a week or so we have live music on the show. It’ll range from someone touring and appearing locally, or a local band looking for exposure or perhaps wanting some publicity for their self financed release. This music is reported. Since they are live we don’t have to worry about synchronization rights (music and picture together). The band signs a waiver allowing us to put their original compositions on air (provided they are doing original songs), sort of a musical “hold harmless.” We had a “Guns and Roses” tribute band on recently, “Guns for Roses,” so obviously we’ve reported use of “Sweet Child of Mine” as used live, on air. What about someone singing to track? We report that too.

Who do we “report” to? To help navigate the music licensing minefield of TV, we are a client of a company called MRI, Music Reports Inc. More about MRI later.

The biggest can of worms is music within newscasts. We have to report the following: Inserted music (any music that runs in a produced program, even the news open and bumper music) or music performed at our request, from singing “happy birthday” to the weather guy or a story about a 12 year old piano wiz playing Chopin intermixed with The Grateful Dead.

And then there is ambient music, music picked up while filming a news story. It’s there, it was playing and we had no control over it -- think marching band in the stands at a football game playing while the reporter is taping a report from the sidelines. The rule states we can use up to 15 seconds of ambient music and not report it. If for some reason two different pieces of music are heard in the background in the context of a story we can use up to 15 seconds of each. There are numerous applications of the 15 second ambient rule for TV that I can’t go into because of space but I think you get the picture.

WFAA is a pay per use client when it comes to music. It’s less expensive than having blanket music licenses. Every show is reported separately. We’re an ABC affiliate, carry Oprah, ET, Dr. Oz (he trained the surgeon that did my heart transplant!) and a few other things. Music licensing of network, syndicated and independently produced programming (like the weekend infomercials) are the responsibility of the producer/production company. Local production including news, the morning show, etc. is our responsibility. Station promos are not reported, but I use libraries for that 99.8% of the time. Similar to radio, the amount of revenue each local program generates dictates the amount we pay for music rights and licensing. Obviously the late news has a greater revenue stream than our Sunday morning “Inside Texas Politics” show.

That’s where MRI comes in. They keep us on track, in line and handle all of our negotiations. If we wanted to use the music of Justin Beiber as a key component of our fall 2011 marketing campaign (I’ll take early retirement if that happens), MRI would be brought in to handle all the music licensing negotiations for us. They are worth every penny we (and other TV stations) pay them.

There are a number of FAQ’s on the MRI website dealing with music licensing of all sorts, even for ringtones! Start at this address for more information: accounting.musicreports.com/blog/?tag=broadcaster. MRI’s website is: www.musicreports.com/home.php.

And I humbly apologize for my occasional lapse into the netherworld of using UCM on stuff I do. I guess it’s the production equivalent of eating meat on Friday during Lent!

Dan O’Day [DANODAY[at]danoday.com]: There’s one mistaken assertion someone made in your April issue that I’d like to correct:

It is not legal to use, without obtaining a special license, copyrighted music in a commercial “about a concert coming up or event where an artist will be performing. This is because the copyright holder will directly benefit or profit from the use and therefore it is implied fair use... and they will directly benefit from the performance.”

Whether or not the copyright holder might profit is not one of the factors that determine “fair use.” (I say “might” because airing a commercial for an event where a performer is appearing doesn’t automatically mean that performer will directly profit from the airing of the commercial.)

If the song and/or recording is copyrighted (and no doubt both are), you need permission of the copyright holders to include it in a commercial... even if the commercial advertises a concert in which the copyright holder might perform.

 

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