Br@ndlegal’s Lieve Jansen demonstrates her entertainment law expertise and expands still more our Frequently Asked Questions
Use of music in advertisements
What rights need to be cleared?
In the UK, the composition (music), the lyrics and the recording of a music track are protected by copyright as a musical work, literary work and sound recording respectively.
The copyright owner of such works has the exclusive right to do and to authorise various acts in his copyright work (known as "restricted acts"). Restricted acts include reproducing musical works and synchronising sound recordings with the visual images of an advertisement. The agency must therefore obtain the permission of the copyright owner to include a track in an ad.
What if the music is in the “public domain”?
The copyright in a musical work and the copyright in a sound recording do not co-exist in parallel. Copyright in musical works lasts for the life of the composer plus 70 years, while copyright in a sound recording lasts for 50 years from release.
The difference is important as it means that use of a new recording by a composer long dead (for example Beethoven) will still require consent from the owner of the sound recording even though the composition is out of copyright. Use of a sound recording over 50 years old composed by the performer of the track may also require consent as the composition may not yet be out of copyright.
Even if the original sound recording is out of copyright, use of a new digital re-master may create a new 50 year period of copyright. Similarly, a new arrangement of a musical work will itself be a new copyright work.
An agency should therefore carefully check that both the composition and the sound recording are in fact out of copyright before assuming that the track is in the public domain and may be freely used.
Who owns the copyright in a track?
Even where the composer and the performer of the track is the same person, the owner of the copyright in the musical work is usually different to the owner of the copyright in the sound recording.
Composers often assign or grant an exclusive licence to music publishing companies of all the rights in a composition whereby the publishing company will collect income on the composer’s behalf.
The copyright in a sound recording will in most cases be owned either by the record company under its recording contract with the artist, or (if the artist is not signed) by the artist.
Does the agency need to get involved with collecting societies?
The Mechanical Copyright Protection Society Limited ("MCPS") and the Performing Right Society (“PRS”) handle the rights to make a recording of and broadcast musical works respectively.
For sound recordings, Phonographic Performance Limited ("PPL") is the collecting society for both making a reproduction and broadcasting in the UK.
In most cases, MCPS and PPL will not be authorised to grant a licence for reproduction of music in advertisements on behalf of their members and the agency will have to deal direct with the artist’s publishing and record company.
How are music rights cleared?
When clearing the use of existing tracks in ads the agency will either have to obtain a licence from either the relevant collecting society or, in most cases, the actual copyright owner. The agency may obtain contact details of the copyright owner from MCPS and PPL, which should be verified as the collecting societies’ records may not necessarily be correct or up to date.
How much will an agency have to pay in licence fees?
Each licence is dealt with on a case-by-case basis and fees depend on many factors, including media, territory and duration of the campaign.
Use of a well-known song or performer will unquestionably be more expensive than using an unknown composer or performer. Accordingly, licence fees can range from a few hundred to hundreds of thousands of pounds.
What issues should an agency consider in respect of the licence?
The agency should ensure that the music licence sets out in detail the ad in which the music is to be used, the method, area and period of transmission of the ad (which should cover the entire duration of the campaign) and an option for a stipulated fee to use the music for a further period or in additional media in case the campaign is extended.
The licensed recording should also be clearly identified as there may be different versions and/or mixes of the song.
The agency should also take into account that the licence will normally provide that the track may not be altered or parodied.
Will the licence cover broadcast of the advertisement?
No, a separate licence is needed to broadcast the ad. Broadcasting music in public is a restricted act for which permission is needed from the copyright owner. As virtually all broadcasters in the UK have a form of blanket licence from PPL and PRS, the agency will not normally have to get involved in this aspect for a UK campaign.
Why should an agency bother obtaining licences for use of music?
Obtaining the relevant licences may seem cumbersome and time consuming, so why should an agency bother?
The consequences of ignoring copyright owners may prove an expensive mistake, as a variety of remedies are available to them for the avoidance and remedy of copyright infringement. For example copyright owners may obtain an injunction to stop use of their music without their consent, which may result in the campaign having to be pulled. Agencies may also find that negotiating licence fees after the start of the campaign may prove to be a lot more expensive.
Now I’ve got a licence, I am free from any claims, right?
No, not necessarily! For example if the track used in the ad contains any uncleared samples, the copyright owner of the samples could claim infringement of his copyright by the agency and monetary compensation. Remember that a warranty from the owner of copyright in the principal material that it owns all the relevant rights is all very well, but even if this is backed by an indemnity, it can still be a major hassle handling the claim by the owner of the rights in the sample and recovering under the indemnity.
An agency could also face a claim from a copyright owner if the licensor does not own all of the rights granted to the agency under the licence or if the licensor has limited authority. For example, it may be that the licensor is not authorised to grant a licence for a re-recording of the original song for ad purposes without the copyright owner’s consent. As a result, the agency’s licence may be invalid if the copyright owner has not consented to use of the song in the ad.
A performer further has certain performers’ rights and a right to equitable remuneration for the exploitation of his performance. These rights may be infringed by the agency if it uses the track without the performer’s (or record company’s) consent.
If the music the agency wants to use is a well known theme song (for example if the music is the theme to a well-known TV show), it may expose the advertiser, the agency and even the TV or radio station on which the ad is broadcast, to a possible action in passing off if the ad gives the false impression that the brand or advertiser is in any way connected to the TV show.
What about “soundalikes”?
Use of “soundalike” singers may also lead to a claim for passing off, if the similarity between the singer's voice and that of a well known performer is so great that the impression is given that the song used in the ad is sung by the well known performer.
Care should also be taken when using or commissioning a “soundalike” version of an existing piece of music as this may lead to claims in passing off and/or copyright infringement. Even if the agency has obtained all necessary rights from the composer of the “soundalike” version, the copyright owner of the original piece may sue for infringement of copyright on the basis that the “soundalike” version is a copy of his musical work, and/or for passing off the “soundalike” version for his material.
And finally, remember here that an agreement by which the “soundalike” composer agrees to indemnify you for the expense of any later infringement claim is all very well. However, it may be held by the court to be unenforceable. The rationale here would be that if the agency and/or the composer believe the piece in question may well be a copyright infringement, it would be against public policy for the courts to enforce an agreement to share or pass on the cost of wrongdoing.
So long as I copy only a tenth of the complete piece of music or a tenth of the lyrics presumably I am not infringing copyright?
Unfortunately the answer to this one is “not necessarily.” This is because a copy of a “substantial part” of a copyright will infringe copyright and the test as to what is “substantial” is a quality, not a quantity test. So it’s not a matter of counting the notes, bars or lines. It’s more a question of establishing whether a “significant” part of the originality of the copyright work has been taken. This is a difficult area, so if in any doubt at all, take advice!
But if I have professional indemnity insurance, I don’t need to worry, right?
Certainly all agencies should have PI insurance against music-related claims, but the precise terms of cover should be checked and it should not be assumed that the agency can simply agree to the claimant’s demands to keep its client happy. Insurers will not be obliged to pay out in respect of anything more than the agency’s legal liability to the claimant.
The insurer may decide that on the facts and relevant law, the client is 50% responsible. This could well mean that even if the agency pays out 100% to keep the client, insurers will only pay half the cost of the claim under the policy.