by Larry Williams
In the Tips & Techniques column of our January issue, John Pellegrini opened up a can of worms, a virtual Pandora's Box of controversy. He didn't mean to; it just sort of happened. You see, John made a common mistake in radio production, the same mistake we all make at one time or another. Let's start at the beginning.
Our tale opens up with the January issue of Radio And Production. John was telling us about the wonderful use of classical music in station promos and commercials. You see, classical music is excellent for setting moods and for specific imaging purposes. What we all tend to forget is that, legally, you can't just grab any piece of instrumental music and use it. Music is copyrighted.
John found out about copyrights the easy way. He didn't get caught doing anything illegal, and he didn't wind up in court. Mr. Alain Leroux, President of Pro Music, a music licensing company, hap-pened to see the article and told John about the laws. John then wrote a follow-up article in the February issue of RAP explaining how classical music is not considered in Public Domain. The performers, as well as the publishers who hold the rights, and the arrangers, get paid whenever their performances are used. Prior approval is required, and licensing fees must be paid in advance of the use of the piece of music.
After the second article cleared the air of any misnomers about the use of classical works, we invited readers to write us of any incidents they were involved in where a piece of music was used without permission...and they got caught!
We immediately received a letter from an ex-production person at radio station KLSX-FM in Los Angeles. The writer asked to remain anonymous. The letter states that a few years back someone at the station produced a commercial using an instrumental piece off the Metropolis movie soundtrack. Guess what? Someone related to the writer, Giorgio Moroder, heard it, and KLSX was contacted by attorneys threatening a lawsuit.
The letter goes on to say that the case was settled out of court for a dollar amount. When we tried to confirm the report with KLSX station officials and the parent company, Greater Media, nobody could remember the incident. They didn't deny it happened; they just couldn't recall it.
We decided to contact the ex-Program Director of KLSX, Tom Yates, and find out his side of the Metropolis incident. He said, "I'll tell you the truth, I don't know much about the details. That just went right to the legal guys. I know it happened. It was one of those unfortunate things. I'm not sure if they paid a fine or if they just sent an apology letter."
Tom went on to say, "Believe me, there are other cases going way back. When I was with ABC, back before the ABC/Cap Cities days, WPLJ (New York) got nailed with a monstrous fine from The Who. And again, I don't know the details. I wasn't the PD at WPLJ, I was at KLOS in those days. But one of the things I know is customary is that if you're caught using a copyrighted piece of music for a commercial bed that is not an advertisement for the artist or the artists record, the rule of thumb has been to go for ten times the amount of money the radio station received for that commercial. So, if you're dealing with a New York or L.A. radio station, you're talking big bucks!"
We were also contacted by a former programmer at KZEW-FM in Dallas. Back in the mid '70's, "We didn't have a lot of music libraries and things, so we would routinely pick up tracks off of movie sound-tracks and use those for commercial beds. It just so happened that the writer of this soundtrack lived in Dallas. He was licensed, and we got a Cease and Desist (court order) on it."
He went on to state, "If a production person or a jock put his artistry down on tape, as in a finished commercial, and then found out that it was running in lots of other markets and he wasn't getting paid for it...we would be incensed that someone ripped off our production. I think that we, as artists, need to have a little more sensitivity to other peoples artistry. We are all artists. That's what it really comes down to. And nobody should use our stuff in a manner in which it's not supposed to be, unless somebody compensates us for it."
It seems the only way to protect yourself from this sort of legal trouble is to keep away from all those records on the back shelf of the production room. You can only legally use production libraries your station has paid for. When your station pays for a production library (e.i. FirstCom, Network, or Brown Bag), the company has already taken care of the licensing rights to the music in the library.
We asked Tom about his current small market station, KOZT. He replied, "Of the twelve stations in this county, only three or four actually have production libraries and use them. We're one of them. In fact, we just did a new order for another one yesterday." Your station has to have and use music libraries in order to keep legal.
How about a client requesting certain music to be used in their commercial. We've all had to deal with it at one time or another. Tom says, "Sponsors do not understand why station 'A' will play their spot with a Beatles record under it and you won't do it." Each and every time these situations arise, you have to sit down with the client or Account Executive and walk them through the station's policies and the law.
Personally, all of the stations I've been with have had only one music policy: Nothing on the playlist can be used in a commercial. That's it. No more. No less. And the PD is the guy who usually says it, not one of the station's legal staff. I've come across this same philosophy in markets ranging from San Francisco all the way down to Small Market, USA.
All of this talk on what you can and can't use for commercial beds brings up another point. Let's say you get a dub from another station in town, or even an agency spot that contains music no one has paid the licensing fees on. Everybody's libel for it! All of the parties involved with the production and airing of the commercial will be in legal trouble.
So what are we to do? Turn down that giant club buy just because they want some obscure dance cut on it? Or how about that flower shop spot that just came over from the other station with a Windham Hill artist on it? It's all up to you to recognize these problems and decide what course of action to take.
Is this the end of the story? No. Let's transport ourselves to a time in the future when you've finally convinced your station to buy that great big production library with everything you could possibly need. You've just completed a knock-out spot using the library. The Account Executive tells you the client loves it and would like you to send dubs to other stations. They'll even pay you for it. Guess what!?! Under these situations, you may be breaking copyright laws with either the station or the production library company because they own the rights to the music, not you.
Let's go to Ken Nelson, VP/Executive Producer with FirstCom, one of the largest production music suppliers in the radio biz: "As long as that is your client and you're producing that spot for your station, then he can, in fact, take that commercial and run it on other stations in that same market."
When asked about the talent fee charge, he responded, "We haven't really tackled that problem. What we've done in our contract is to build it in so that our client (the station) is providing a service to their client. And, it allows them to use the spot elsewhere. Actually charging them (the station's client) for that hasn't really come up. We're not really chasing those dollars down." However, "if the Production Director at the radio station is producing spots as a production house (meaning they don't run on your station), then yeah, we want to know about that. That's a whole different thing. That's certainly not the intention of the library or the contract."
Now if you wanted to use a library for your own free-lance business, Ken says, "We have had guys from radio stations call us and say, 'Look, I'm starting my own deal. I really want to be able to produce and sell these spots outside. What do I need to do?' In that case we have a way for them to do that. We have a Synchronization Contract for that."
Now let's have Ken get down to the truth behind the term Public Domain. He says, "If a track is Public Domain, then I can re-record it, publish it, and put it in my library. It means there is no existing copyright on it (the song itself). We have the arranger, and we produce that version. You're licensed to use that if you buy our library. If you went to a record store and bought it, technically you're not supposed to do that."
I had the chance to talk with Greater Media's Associate General Council, Barbara Bums. She says, "Radio stations may not use music to which someone owns the copyright without paying that person for the use of it when they make commercials. In other words, if you use a piece of soundtrack music or a cut off an album to make a commercial, you have to pay a license fee."
Okay. Enough on the subject! How about station promos!?! A whole different set of rules applies here. SURELY I CAN USE SOME MICHAEL JACKSON SONGS FOR THE UPCOMING TICKET GIVE-AWAY!? On this, Barbara says, "Well, if you wanted to be entirely technical about it...no. But, the practical matter, when you're promoting Michael Jackson and his concert, he probably isn't going to mind."
So what are all those ASCAP and BMI licensing fees? Your station pays ASCAP and BMI for the performance of the music. This doesn't necessarily mean you can use the music to promote the radio station. And, you certainly are not supposed to use a piece of music that your station doesn't typically play, like a classical piece. If you do that, once again, you're breaking the copyright law and facing fines.
Speaking of ASCAP and BMI, here's a little story that opened up my eyes. When I was at KUBE in Seattle, I remember getting a call one night from a guy who said we used one of his songs for a commercial on the station. (There are a lot of New Age artists in that area.) Being ignorant of the legal aspects of what was going on, I said, "We can do that because we already pay ASCAP and BMI for the rights to the music," to which he res-ponded that he wasn't licensed through ASCAP or BMI. That had never even occurred to me. Who has time to sit around the production room checking licensing rights on records? The spot was still on the 4-track from the night before, so I quickly changed the music bed to one from our library. I never heard from him again.
Along the same lines, the letter we received from the ex-KLSX employee also described another incident involving a TV spot for the station. The commercial showed a radio dial tuning with an announcer saying something like, "Is this the kind of crap music you want to listen to?" The song they were using for the audio portion was by Madonna. (Remember, KLSX was Classic Rock.) The station was quickly contacted by people representing Madonna. They said no permission was given for the use of her music in the commercial and demanded that it be taken off the air. KLSX immediately pulled the spot. They don't typically play Madonna and shouldn't have been using that piece of music in the first place. By the way, no confirmation from the station on this one either.
Just remember, copyright infringement is not a threat, it's federal law. What might seem like a good idea could be a bag of trouble. If you have a song that you would like to use, contact the Clearing House in Los Angeles, The Harry Fox Agency in New York, or Pro Music, Inc. in Florida. These are all Synchronization Licensing Companies and should be able to help.
For more information about copyrights, contact the Library of Congress or the Patent and Trademark office in Washing-ton, DC. They have informational pamphlets at a low cost that give you the basic do's and don'ts of the copyright laws. (P.S. The pamphlets will come in handy next budget meeting for pitching that production library you've wanted.)