By John Pellegrini
Okay, I tried to be sensible. I tried to be patient. I tried to be understanding. But this whole freaking nightmare regarding music copyright laws is going to drive me BEESERK! I am going to suggest that those of you who have been following the research that myself, Larry Williams, and Flip Michaels have been doing over the past years regarding which music can be used and cannot be used in commercial production had better sit down while reading this article.
Just when I thought that I had finished the last article I’d ever need to write about this subject, lo and behold, I’m hit with a new piece of information that somewhat rips the whole thing apart from top to bottom. This piece of information comes from our friends at ASCAP, you know, the American Society of Composers, Authors and Publishers—the music licensing firm that your station likely pays fees to in exchange for broadcast rights to songs. They and their two counterparts, BMI and SESAC, make sure that the artists who write and perform the music get paid the royalties for the music when we play it on the air.
We at RAP have been trying to piece together this mess ever since I wrote an article about using classical music in commercials and station production for greater effect. I was immediately called by a publisher and licensing company that handles classical music and found out that such use of the music could be grounds for a major copyright infringement lawsuit. This led to a series of articles that found the following conclusion: You May Not Use Any Music In A Station Promo Or Commercial Unless It Is From A Licensed Production Library. This means that you cannot use the “Theme From Mission Impossible” for a car dealership commercial. Nor can you use “Taking Care Of Business” by BTO in a commercial for an office supply store, unless you pay royalty fees to the composer, publisher, record company, or whomever holds the copyrights to the music.
Well, that seemed to be clear enough, and we all tried to live by those rules happily ever after. Right? Not quite. You see, I happened to stroll past the ASCAP booth at an NAB convention last year while there as a part of a panel on commercial creativity hosted by fellow RAPster, Dennis Daniel. Guess what the ASCAP booth guys said? Your ASCAP license does allow for use of any music from ASCAP’s inventory in commercials and promos, without need of clearance or royalty payment. Further, they said that those publishing companies who said that it didn’t were wrong.
Unfortunately, the day I spoke with them was the last day that I attended the convention, and I didn’t get much of a chance to follow up with them. And after I thought about it, I really didn’t want to get involved in that mess again, except that something about it was bugging me in the worst way. So I decided to check into it, and in the process, I discovered a legal Catch-22 that makes the IRS and the Chicago City Council look like amateurs.
Technically, ASCAP’s authorization does cover the rights to use music in their inventory for commercial work. The problem lies in the definition of what music is in their inventory. There are tricky mitigating circumstances all over this issue.
For example, not all music is covered by ASCAP. So, you have to be certain that the record you’re using is part of their inventory. Once you’ve determined that, you must then make sure that the performer of the music is also the composer. If not, then you’ve got to find out if there are any royalties due to the performer or the record label, as well as the composer, and his or her publishing company, and/or record label. ASCAP may or may not cover all this. Another thing you need to know: Is the performer still contracted with the record label that the song first came out on? If not, then you’ve got to find out how many more people need to be paid off, and whether ASCAP is still covering the performer or composer at their new label or publishing company. Also, what if the music in question has multiple memberships in ASCAP and BMI and SESAC? Yes, it is possible if the composer belongs to one, the performer belongs to another, and the record label or publishing company belongs to the third.
All of these questions can be answered probably with a simple phone call to ASCAP or BMI or SESAC. I say “probably” because even though lots of composers, performers, record labels, and publishing companies belong to these three organizations, not all of them do. Plus, in this day and age of lawyers suing lawyers for any reason, just because one of the three organizations authorizes the use of the music, it doesn’t mean you won’t get in trouble.
Another problem in this is that the actual owner of the song may not be who you think it is. For example: John Fogarty, the former lead singer and composer for Creedence Clearwater Revival does not own the rights to any of the songs he wrote during his time with the band. The owner of the band’s record label (Saul Zaentz) does. If and when Fogarty wishes to perform any of his old songs from Creedence, he must ask permission from, and pay usage fees to, his old record label to do so. You may remember when Fogarty’s first solo record came out back in 1986, his old label (Saul Zaentz) sued him because some of his new songs sounded like his old ones to the point of sounding like direct copies. The case was eventually dismissed and the suit was lost by the label, but nonetheless, it was a time-consuming and costly legal process for Fogarty to defend himself (technically speaking, against his own works).
Also, and here’s another tricky point, it has been argued that ASCAP, BMI, and SESAC licenses only cover the music that is played and paid for on the station. If your station plays light rock and you use a song that’s clearly “Classical,” or if you’re working for a Classic Rock format and the client wants a song that’s “Alternative,” your ASCAP, BMI, and SESAC license does not cover you, and you’re up the copyright poop creek. In short: you are only covered for the songs you play in your format. Songs that are clearly out of your station’s format are illegal, because your station technically doesn’t play them regularly enough to have paid for broadcast rights on them. God help you if you work at a talk or news/info station, in which case you’re not licensed for any music at all! Of course, that’s only if we can accept that ASCAP, BMI, and SESAC are right, and they have covered your legal butt. This also creates a large problem for clients who want to run the same spot on different radio stations. Here in Chicago, when we make dubs of spots that we produce, we send voice only, and the other stations must supply their own music beds. I won’t even discuss the AFTRA/SAG rules regarding voice-over payment, which is another source of endless headaches.
Authorization not withstanding, if the composer or the owner of the rights to the music in question decides that you used their music without their permission, your ASCAP, BMI, or SESAC contract isn’t necessarily going to help you much in a lawsuit. There are many ways a contract can be contested, and there are many lawyers out there looking for a big name case like this to make their name. Beauty is in the eye of the beholder and permission is in the mind of the copyright holder.
ASCAP, BMI, and SESAC may claim they authorize the use of music licensed under them for commercials (actually I only know that ASCAP does—I haven’t checked out BMI or SESAC), but, even if they do, I’d stay away from it if I were you. There are too many variables and too many possibilities of something going wrong in a situation like this. Common sense simply dictates that not doing it in the first place is the best way to avoid the problem.
Besides all that, if you grant one client the opportunity to use a song in a commercial like that, then everyone will want it. You’ll have nothing but songs from your station’s music library on all your commercials. How would you like a spot break that had a hardware store commercial featuring “Saturday Night Fever” followed by a car dealership with “Take This Job and Shove It” followed by a tanning salon with whatever that song is by Coolio followed by a restaurant with “Mandy” or worse, “Misty?” Not to mention a rock ‘n roll nightclub with “Sandman” by Metalica or any other heavy metal band. Commercial breaks like that are enough to gag a maggot, as the Queen would say. Trust me, your station won’t have any music credibility, or listeners left at all.
Stay away from using artist music in your commercials altogether, and you’ll be much happier and a lot less broke.
BIG MESS BULLETIN!!
In the time between when I first started writing this article and now, I’ve learned about an incident that occurred a while ago which seems to blow ASCAP’s claim of protection out of the water, and any other music licensing company’s claims.
An acquaintance of mine, a Production Director in another city, was involved in a lawsuit from an artist concerning use of music in a commercial. The station involved is in a major (top 20) market.
Apparently (I don’t know all the details), my friend was contacted by an agency to produce a spot for one of the station’s clients. You know, the agency supplies the script, and you have to produce it. The agency told him that they wanted a certain song by a popular country artist in the commercial.
My friend warned them that this was against the law. They could not use that artist’s music in the commercial. The agency’s response was to treat my friend like a two-year-old. Just use the song and shut up about it. We’re the educated, experienced agency, and you’re the radio lowlife idiot. We’ll tell you what to think. We’re paying for it, and you’ll do as we tell you was the attitude of the agency rep. The client agreed. The station management decided to placate the client, and my friend ended up producing the spot as instructed.
Guess what? The artist whose song was in the commercial lives in that town, heard the spot, and sued. Sued the client, sued the agency, sued the radio station, and all the people connected with the commercial have been named in the suit, including my friend, the producer. ASCAP, who claims to allow the use of artist’s music in commercials, is nowhere to be found. Ditto BMI. None of these agencies is helping the station in this suit. ASCAP’s claim of protection would seem to be an extreme exaggeration of what they will do for you. The artist decided that they didn’t have his permission, and that little “protection” clause from ASCAP isn’t worth the paper it’s printed on.
The suit has not yet come to court. My friend has left the station and is now operating his own production company. He tells me that the station is taking full care of his legal involvement in this matter. Their defense is their clause to “accept in good faith and hold harmless all commercial advertising.” They also say that they tried to warn the client and the agency not to do it. But, the suit apparently says that this was not enough, and the commercial should have never been allowed on the air.
So, what does it mean for you? Looks like our little cocoon of anonymity has been burst. Looks like in the future, as Production Directors, we can fully expect to be named in lawsuits of this nature, even if we do these commercials under protest. My friend is fortunate enough to have been working for a radio station that is protecting him as far as legal aspects go. The station is paying for the lawyers and the legal fees. Would yours do the same? Or would they decide that it’s every man and woman for him or her self?
I have a friend who recently was hired as a finance manager at a car dealership. The dealership tried to get her to do some illegal paperwork. She refused. The dealership threatened her by saying that if she didn’t do it, she’d lose her job. She had a lawyer tell them, in no uncertain terms, that they were out of line and she’d blow the whistle on them if she had to go through with what they wanted her to do. Why? Because, even if she did the illegal stuff under protest, the dealership can claim it was all her idea and make her the scapegoat of any criminal investigations that followed.
What’s the point? The same thing can happen to you, Production Director. In this day and age when the only people who win court cases are the ones who spend the most money on lawyers, how much are you willing to let slide? If you’re working for a station that you believe would abandon you in such a case, maybe you should get the hell out of there!!! If you’re not sure, then get your GM to give you the full company policy toward legal action of this nature. If the GM doesn’t have anything, or if you get a stall, maybe it’s time to update those demos and resumes. No one is going to help you more than you. There are stations out there that have comprehensive plans for these things, and no one should ever have to worry about situations like this occurring.
This all comes under making the right steps in your career for your future. Look out for yourself and make sure you’re protected, not just in health benefits, but in the legal sense. As we find more and more uneducated idiots opening their little “In Home Advertising Agencies” with no qualifications to do advertising, and as we see more and more lawsuits of this nature starting to arise, the need to protect yourself legally is as important as any other consideration when working for a radio station or a production company. You can no longer afford to play innocent! Ever hear the phrase, “ignorance of the law is no excuse?”