by Flip Michaels
So, you run a tight ship...and nobody follows the rules in your market the way you do! (What's the problem Flip?!) Hey! Check your promos and concert spots promoting appearances by performers. You just might be in violation of another copyright law!
Concert spots/Promos: Ben Ivins of the NAB's Legal Department tells us, "When a station purchases a blanket license from BMI, ASCAP, or SESAC, it has secured the rights to publicly perform the works in the music libraries of those organizations. These public performance rights do not include the right to re-record portions of a song for inclusion in a commercial or to produce a 'derivative' version of the work, which is normally involved when portions of a copyrighted song are included in a commercial. Separate rights, commonly known as 'synchronization rights' normally must be obtained prior to using another's music or recording in a commercial."
If you are recording a promo/concert spot promoting an appearance, and it's not a direct business promotion with the artist(s), you had better get clearance. For example, "Join us after the show at Joe's Pub - just flash your Def Leppard ticket stub and you'll receive...." Sorry, chap. Def Leppard never intended to promote Joe's Pub. Produce it with Def Lep's music and you could get sued!
1. Start with the advertisers. Make them aware of the potential danger of an indirect promotion.
2. If it's a concert spot, chances are, you're in the clear. BUT NEVER ASSUME. It only takes a minute to ask!
3. Need permission: call the Harry Fox Agency in New York at (212) 370-5330. The cost to obtain the necessary rights depends on the size of your market and length of time the commercial will air (so have them handy).
Ever wonder what it would cost? I did, so I called. Anywhere from $1,000 to $25,000! Obviously, the bigger the market, the higher the cost. There are tons of variables.
Ben adds, "Obtaining the necessary rights and clearances to include popular songs in a station-produced commercial will entail considerable time, effort, and expense. Accordingly, if advertisers approach you with such a request, you should tell them up front what time, effort, and expense may be required, and you should figure these into the value of your production efforts."
Special thanks to Ben Ivins, Steve Bookshester/NAB Legal Dept., and to Thadd McNamara (KUIC/California) for their undivided attention!