Copyrighted/Licensed Music in Commercials...

[activestatic]

Is it ever ok to use copyrighted/licensed music in a commercial? I am in South Louisiana and the local music scene down here is HUGE. Every week we have local bands playing at local venues, anyplace from bars to festivals. Is it ok to use their music in the commercial if they are playing at an event or venue? Also, Pete Best was recently in town to perform with his band. You know that guy that was the original drummer for some band called the Beatles? The AE was insistant that we could use the music off of Pete Best's DVD. After checking with my OM he said it could be done because Pete Best was actually playing at the local venue. I know better than to throw "Pink Cadillac" in a local Cadillac dealer's spot but we have many people in this market who are still living in 1970's/1980's mindsets where it is ok to thrown in any music they think "sounds cool" in a commercial. I was able to break our AE's from doing such things with club spots. Some local club owners have taken their business across the street because we will no longer produce spots for them with the latest Jay Z, Britney Spears and Pusscat Dolls songs in their spots. Since I have taken the reigns we only offer clients stock production music for all spots. With the only exception being local bands at local venues. But is that even close to being "ok"? Any input would be greatly appreciated.

Thanks!!!

 

[salchris]

IF you're promoting the band and they are in town, yes use their music, if a car dealer wants to use Pink Cadillac, have them call Springsteen and ask permission, You see where I'm going with this right?.

Never use copyrighted material in a commercial unless you get express written permission from the Commissioner of Major League Baseball and it's affiliates. ;D

Use your tactfulness and explain to the client that it's not legal, and you have a great licensed music bed that will sound great under his spot.

Larson

 

[Hart]

Here's a pretty good little article you might want to read. I sent a copy to all the AE's back when I was a production director too. It helped clear up a lot of confusion.

http://www.rapmag.com/PayThePiper.html

Adding to this a little bit. I'm sure any local band would be thrilled if you used their music in a commercial for a bar they're playing. If in doubt just ask them. They'll be thrilled, and then they'll bug your program director for the next year asking why they aren't getting any airplay, so it's a win-win. ;D

I actually would use music occasionally from local bands in unrelated commercials but always with their written permission. Paper trails are a wonderful thing.

 

[VODood]

Here's a pretty good little article you might want to read. I sent a copy to all the AE's back when I was a production director too. It helped clear up a lot of confusion.

http://www.rapmag.com/PayThePiper.html

Adding to this a little bit. I'm sure any local band would be thrilled if you used their music in a commercial for a bar they're playing. If in doubt just ask them. They'll be thrilled, and then they'll bug your program director for the next year asking why they aren't getting any airplay, so it's a win-win. ;D

I actually would use music occasionally from local bands in unrelated commercials but always with their written permission. Paper trails are a wonderful thing.

I printed out the very same article for our cluster here in Toe-Lee-Dough. It's in layman's terms. Any AE can understand.

 

[BigVoiceGuy]

Yo Static,

I feel your pain. I won't do it either here at my cluster of 6; but by God...those guys across town will and It really makes my job tough. My GM even stepped in once and said "WELL you can use up to 10 sec..." I interupted and said. NO! You can't. I had to explain to my GM that I was just trying to protect us from a potential multi million dollar lawsuit; but if he absolutely needed $500 bucks on the books to cover his hind end on the weekend, then he could go in and cut the spot himself. It always helps to have a real savvy corporate attorney on staff too; those guys can explain it in no uncertain terms to market managers.

 

[crowe1856]

You should be fine using an artist's music to promote their show. Probably wouldn't hurt to get permission in you can, but it's unlikely they'd seek action against promoting their own concert.

As far as the bigger picture, I'm right there with ya; there's quite possibly nothing that gets under my skin more. No, it's not legal without clearance; but for me, it's really the principle of it all. Sure, you're probably not gonna get caught, but that doesn't make it right. Of course, most of your traditional clients will understand, but it's the night clubs that INSIST on having copyrighted music in their spots. However, these club owners would be first in line to sue if they were in a band and found out someone was using them to make a buck without permission. Night clubs pay performance fees for use of music IN their club, but that does not give license for use in commercials. Generally, we'll use an artist's music if the spot is promoting that artist's concert, but that's about it. Dan O'Day has a pretty good resource on the subject, which you can get here: http://danoday.com/ebook.cgi.

Where I'm really finding a grey area now, is with these club dj's who basically take a copyrighted work & remix it with some loops & beats...is that now an original work? Sure doesn't sound that way on the air. They want me to use their "creation", and BMI says you're not responsible for getting clearance on spots provided by an agency (http://www.bmi.com/brochures/licensing/music_in_commercials.pdf), but what exactly is an agency these days when anybody with a home PC & a microphone can do multi-track editing?

 

[Hart]

Where I'm really finding a grey area now, is with these club dj's who basically take a copyrighted work & remix it with some loops & beats...is that now an original work?

At the moment, no it's not. Congress has been looking at at however. I read a related article in Newsweek a while back: Politics and Hip-Hop Are Doing a Mash-Up

 

[mikl73]

Those are great links you guys posted.

 

[jimron]

if pete best wrote his own music and lyrics, then while it's still technically illegal cause you didn't get permission, you probably won't get in trouble.

but you can't use any beatles music. mcartney and lennon, aside from a few songs written by george and ringo, wrote all of the beatles music and lyrics. plus last time i checked michael jackson owned the rights to the entire beatles catalog.

even if you're using a band's music to promote their concert, the band itself might not be the copyright holder to the music. you need permission from the copyright holder to use an copyrighted material in any broadcast or non-broadcast situation.

 

[radiorob2.0]

In a nutshell, you should have permission and be willing to pay the rights to use copyrighted music. However, it all falls under the "if you get caught" umbrella. The Performance Rights Organizations will only step in if the composer, or in the case of Sound Exchange artist or label, bring the infraction to their attention.

So if you're in Podunk USA and a client wants to use "Simply The Best" for a commercial, you should obtain a mechanical license from the respective agency. But chances are you won't get caught unless the songwriter, Tina Turner or a representative of the record label should be driving through Podunk and hear the song on the commercial and report the action. At which point, you will receive a letter along with a bill. You will have to pay the bill and it will be a hefty one. Concert spots were explained in another post but you should be okay unless the touring band is different from what's on the record. But when in doubt, ask or be ready to plead insanity.

But in the real world, we in production usually lose the battle when it comes to this issue. There are some class operations left that have set policy regarding the use of copyrighted music. But it's a new world and the need for cash causes rules to go out the window. All it takes is a immature Account Executive to stomp his/her feet, act like a five year old and go over your head to a sales manager or cluster manager who is more concerned about his end of year bonus than ethics. If that is the case, you will have no choice but to use the copyrighted song in the commercial because, "It's what the client wants and we're here to serve the client!".

 

[uppendowndadial]

last time i checked michael jackson owned the rights to the entire beatles catalog.

Actually, Paul still owns four or five of the early hits. Michael and Sony own the rest

 

[Gregg Rivers]

Even in small or podunk markets you can get busted fairly easy for copyright infringement. All it takes is a rival station to report you! Don't think a competitor wouldn't turn you in for a chance to put your butt in a crack. It's just not worth it. My response to the "It's what the client wants" argument is "Does your client want to risk their business for a music bed under a commercial?" If you can get the A/E to explain to the client that they (they client) could be sued and lose everything they have for doing that, most often they will back away from the idea. You as the Production Director then have to come up with a creative and effective commercial that gets the results they want with out turning to the dark side!
The same response goes for GMs that insist on doing that! "Do you want to risk your station reputation, your job and possibly the company itself on a commercial music bed?" I know I won't risk my job and reputation on that. It's because I have the client, the station, company and owner’s best interest in mind.

 

[jimron]

But in the real world, we in production usually lose the battle when it comes to this issue. There are some class operations left that have set policy regarding the use of copyrighted music. But it's a new world and the need for cash causes rules to go out the window. All it takes is a immature Account Executive to stomp his/her feet, act like a five year old and go over your head to a sales manager or cluster manager who is more concerned about his end of year bonus than ethics. If that is the case, you will have no choice but to use the copyrighted song in the commercial because, "It's what the client wants and we're here to serve the client!".

actually at the station i work for that's not the case. no matter how much the AE complains, if there's a question about the music it doesn't get used. simple as that. and if it's a deal breaker, then it's a deal breaker. i can, at least, win one battle with sales.

 

[jimron]

Even in small or podunk markets you can get busted fairly easy for copyright infringement. All it takes is a rival station to report you! Don't think a competitor wouldn't turn you in for a chance to put your butt in a crack.

in addition to that, i remember reading somewhere that ASCAP, SESAC, and BMI have "agents" across the country who report violators. correct me if i'm wrong on that, but i could have sworn i read that somewhere.

 

[radiorob2.0]

My response to the "It's what the client wants" argument is "Does your client want to risk their business for a music bed under a commercial?" If you can get the A/E to explain to the client that they (they client) could be sued and lose everything they have for doing that, most often they will back away from the idea. You as the Production Director then have to come up with a creative and effective commercial that gets the results they want with out turning to the dark side!
The same response goes for GMs that insist on doing that! "Do you want to risk your station reputation, your job and possibly the company itself on a commercial music bed?" I know I won't risk my job and reputation on that. It's because I have the client, the station, company and owner’s best interest in mind.

The problem is I've lost the battle more than once using all the arguments you state. However, when you have management who is addicted to money and cares less about ethics you will lose every time.

Many years back I was asked to use a Beatles song as a commercial bed. I logically tried to explain the implications of using copyrighted music, especially from the Beatles catalog, in a commercial. I was told, "It's what the client wants!". I tried to argue further but the, "....if you want to work here!" line was used; checkmate, management won. At which point you use the music and let the chips fall where they may.

Again, there is logical management out there who still understand this issue. But unfortunately there are managers and even owners who have no problem breaking these rules and perform psychic head on a client for their money. Remember, there is debt load and stock holders who want their unfair share; so to hell with ethics. Do I agree? No. But when management is threating dismissal, you don't have a choice.

 

[uppendowndadial]

in addition to that, i remember reading somewhere that ASCAP, SESAC, and BMI have "agents" across the country who report violators. correct me if i'm wrong on that, but i could have sworn i read that somewhere.

You are correct. There was an ad in our local paper looking for people to do that.

 

[BenTehelenbach]

Eons ago I worked with a sales manager in a nanomarket who advised his sales staff and clients against using familiar music in commercials on the grounds that listeners would listen to the music and miss the advertising message, or, resent the advertiser for letting their message get in the way of the music. God bless him, wherever he is today. I once asked him, "Isn't it against the law, as well?" His response was, "Yeah, but (the advertisers) don't care about that because it won't be them getting sued, it'll be us."

 

[radiopropd]

Congrats to all those who refuse to use copyrighted music. In my many years, it's been a battle that I've fought. My last gig as a PD was frought with this - the GM (first time GM) knew that we couldn't use copyrighted music, but one of our clients wanted to use copyrighted music for two of his commercials selling water softeners - the first was Ironman and the other was a song from Stevie Ray Vaughn. Long story short was when the client came in to record his spots he told me about the music he wanted to use - I told him that we couldn't and the reasons why - at which time he said that the GM already told him is was alright to use. I brought this up to the first time GM and his response was that we'll use the copyrighted stuff until he receives a cease and desist.

 

[Gregg Rivers]

Wow! For those of you that have had your jobs threatened, I feel bad for you. Not sure if I'd want to be a long term employee under those circumstances! That’s just a lawsuit waiting to happen. It’s only a matter of time before someone turns them in.

 

[Coronaextra]

I won't put copyrighted music under commercials, period. The time or two early in my career when a rep insisted, I told him he'd better learn to use the computers because he was producing the ad himself. The discussion ended.

I've never had a GM give me a hard time, but I did have one client. When I asked him if he was ready to pony up $25K if he got caught, he backed down.

If GMs are that stupid, they don't need to be GMs for long.

My motto for radio.

The customer (listener) is always right. A client is NOT a customer. They are our client which is why we are here to advise them.