Every week, I get asked about using popular songs in commercials. While some big advertisers seem to use them at will (Burger King, Toyota, and many computer companies to name a few), not many people know what's involved in licensing the rights for use in radio or television commercials.
"But," you say, "the radio and TV stations already pay for a license to ASCAP and BMI!" Yes, they do, but that is called a Performing Rights License. A broadcaster's performing rights license does not extend to the recording of copyrighted music with a commercial message. The DJ or talk show host reading the copy along with the music live is fine but if you record the message and the music together you must have a different kind of license and that license has nothing to do with ASCAP or BMI.
The use of copyrighted musical compositions as part of recorded commercial advertisements in any broadcast medium (including radio, TV and closed circuit systems such as in-flight programming) or mixed with video (including corporate videos for meetings or sales use) must be licensed by the publisher. This license is called a Synchronization License.
Permission for lyric changes, if any, must also be requested. A synchronization license covers only the right to rerecord the music, not the right to use a commercially released recording. Permission to use a commercially released recording must be obtained from the record company (after you have paid the publisher for the synchronization license).
How much? Negotiable.
They don’t have to give permission at all. Prices can range from $500 to $100,000 or more. Due to contract constraints and union requirements the use of commercially released recordings can be difficult, time consuming, and expensive.
Who pays? The advertiser.
Public Domain
Music that has never been copyrighted or whose copyright protection has expired is said to be in the public domain. Public Domain music, commonly referred to as PD music, can be used for advertising purposes with no fee having to be paid. The music can be recorded and the lyrics can be used in their original form or changed if desired.
It must be remembered, however, that this liberty can be taken with PD music, but not necessarily with a particular recording of the music. Sound recordings are copyrighted, too. To use a recording of music you have to have the permission of the owner (copyright holder or record company) of the recording. Also, a particular arrangement may have been copyrighted.
How Long Does a Copyright Last?
Works registered before 01/01/1923 - 75 year copyright has expired.
*Works registered before 01/01/1978 - 95 year from date of copyright.
*Works created on or after 01/01/1978 - copyright duration is the life of the last surviving author plus 70 years.
*includes Sonny Bono Law
Notice the use of the words "registered" and "created". Since 1978 a musical work does not have to be registered to be copyrighted. It is automatically considered to be copyrighted when it is put in physical form, such as a recording or written sheet music. To help protect their copyright composers usually put a notice of copyright on the work and also register it.
Use of Music Libraries
ARCA offers "Needledrop" music beds. Most production houses, radio stations, and TV stations subscribe to music libraries or "needle drop" services. We pay for the licenses by annual contract with the publishers then resell the license to the advertiser.
How much? Usually $65 to $85 for a local spot. More for multi-markets.
Most library music is also listed with ASCAP or BMI, so if it is used in a corporate meeting or on telephone message-on-hold, public performance fees should also be paid.
Who does it hurt?
Anyone who uses music that has not been cleared and paid for is not only stealing from the songwriter and publisher, but is also turning the advertising market into an uneven playing field. Ethical advertisers, agencies, broadcast companies, and production facilities who abide by the law are limited to the music they can afford, while the illegal music users go their merry way as if the entire music world was available to promote their product for free.
But will they really come after me if I don’t get a license?
Licensing organizations and the publishing industry have representatives in most markets of any size and are cracking down on the illegal use of music. Judgments in excess of $50,000 are not uncommon.
Be careful! Pay for the right, use licensed music from production libraries, or have music custom written for you. It’s cheaper in the long run and it’s the law.
Links
If you want to know what license you need for your project, go to:
http://www.nmpa.org/hfa/licensing.html
If you want to know the lyrics of a particular song or who wrote or
published it, try:
http://www.songfile.com/
If you strike out there, try:
http://www.ascap.com/ace/ACE.html
Then, if you still need help, go to:
http://www.bmi.com/home_rep.html
LEGAL DISCLAIMER: This text should not be regarded as legal advice. Consult an attorney familier with entertainment law and your own professional circumstance for legal advice regarding copyrights.
SOURCES
The Harry Fox Agency
205 East 42nd Street
New York, NY 10017
http://www.nmpa.org/hfa.html
Tel: (212)370-5330
Fax: (212)953-2384
BMI
10 Music Square East
Nashville, TN 37203
http://www.bmi.com/home_li.html
Tel: (615)259-3625
American Society of Composers, Authors and Publishers (ASCAP)
Index # (212)621-6160
Call the index number to find out the publisher of a song
http://www.ascap.com/licensing/licensing.html
Shemel, Sidney, and Krasilovsky, M. William.This Business of Music. New York: Watson-Guptill Publications,1990
Copyright Office Circular 92, Copyright Law of the United States of America, 1991
Article by Clyde Snider
Chairman of the ARCA Board & Producer
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In the beginning...
With the advent of digital audio workstations, CDs and MP3s, a lot of today’s broadcast producers never had the “advantage” of working with media such as analog tape. Well, not so long ago in a studio not far away, recording was done on tape. To edit it, you cut it with a razor blade and spliced it back together. The speed of the tape passing the record head contributed to the quality of the recording. Faster was better. Multi-track recorders were used to record voice tracks, music and sound effects. The music beds and sound effects came mostly from records. There was nothing like snaps and pops in your nice spot to make you want to ... well, wait for CDs to arrive! Then the multi-track tape was mixed down to a mono or stereo machine. After that, the spot would be dubbed (copies made on high speed machines that resulted in another generation loss) to yet another reel-to-reel copy. Tapes were then shipped to radio stations where they would be dubbed again onto carts. This was another step down in quality!
Back...to the future!
Today, all our voice tracks are recorded on a multi-track digital audio workstation (Pro-Tools), straight to a computer hard drive. Sound effects and production music from CDs (yeah!) are laid in. Each element can be edited, time compressed or expanded, EQ'd, delayed, or manipulated any number of ways, all in the digital realm with no generation loss. A single mixed file (or bounced file) is made (still in the computer!). That digital file is then usually converted to an MP3 (or a .wav file, or a .aif file, or one of nearly a hundred different formats)
These are uploaded to our server (or yours) and linked to our website, where they can be downloaded directly to your desktop, or by your local radio station. Most radio stations transfer the MP3 or CD audio straight into their computer system for playback and logging. This also has helped with the broadcast quality of the final product.
We can also overnight CD copies directly to you or your client.
A lot has changed since I started producing audio at ARCA in 1986!
Just know that the ARCA staff intends to stay on top of advances in recording so that we can continue to provide you with the most professionally produced product.
MP3
MP3 (MPEG-1 Audio Layer-3) is a standard technology and format for compression a sound sequence into a very small file (about one-twelfth the size of the original file) while preserving the original level of sound quality when it is played. MP3 files are identified with the file name suffix of ".mp3".
Using their knowledge of how people actually perceive sound, the developers of MP3 devised a compression algorithm that reduces data about sound that most listeners cannot perceive. MP3 is currently the most powerful algorithm in a series of audio encoding standards developed under the sponsorship of the Motion Picture Experts Group (MPEG) and formalized by the International Organization for Standardization (ISO).
Most computers today have an mp3 player built into their operating system. Otherwise, you can download a player from one of several popular MP3 sites. MP3 files are usually download-and-play files rather than streaming sound files that you link-and-listen-to with RealPlayer and similar products.
Article by Alan Helms
Production Director |
