Thomas Jefferson, Benjamin Franklin, and James Madison...they are to blame for the reason a local motorcycle dealer can't use Steppenwolf's song "Born To Be Wild" in their radio commercials. Or why the local jewelry store can't use Beyonce's song, "Single Ladies (Put A Ring On It)" in their radio commercial. Or why the local Van Halen tribute band can't use their own version of "Jump" in their commercial promoting an upcoming appearance. And why nobody can use "Happy Birthday To You" in their radio commercial.
Article One of the United States Constitution which the framers, including Jefferson, Franklin, and Madison, unanimously voted into law includes:
The Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This is known as the copyright clause. The framers believed that such protection would promote innovation and entrepreneurship by giving writers, artists, and scientists exclusive rights to profit, for a limited time, from their creations. Congress has added clarity and specificity to the clause over the past 200 years.
The Copyright Act of 1976
According to Thomas Welch who specializes in intellectual property and copyright law at Bergen & Parkinson in Saco, Maine, "Copyright law is currently embodied in Title 17 of The U.S. Code and is commonly referred to The Copyright Act of 1976. Under the law the exclusive right to use, perform, sell, or license copyrighted material is afforded to literary works; musical works including any accompanying words; dramatic works including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings and architectural works."
The framers of the Constitution did not intend for copyright protection to last forever. But don't expect to use "Born To Be Wild" in a local motorcycle commercial anytime soon. According to Welch, "A copyright on any work, music or otherwise, lasts the life of the author plus 70 years." Mars Bonfire, the songwriter of "Born To Be Wild" is still alive, so even if he passed away today at the age of 69, his copyright wouldn't expire until 2082.
Violating copyrights can be a cripplingly expensive proposition. According to Welch, "A person who has been determined to have committed copyright infringement is liable for actual civil damages, including any demonstrable harm and lost profits. In addition, a court may impose statutory damages, ranging from $750.00 to $30,000.00. In some cases, where it is demonstrated that the infringement was willful, statutory damages as high as $150,000 may be imposed." In a recent copyright infringement case, Frito-Lay was found guilty of using a Tom Waits song, "Step Right Up" sung by a Tom Waits impersonator in an ad for Doritos. The company was fined $2.4 million dollars.
The Seven Second Rule
There is an urban legend that an advertiser can use up to 7 seconds of a licensed work in their commercial before they have infringed the intellectual property rights of the copyright holder. Attorney Welch says, "Time isn’t the issue in this type of circumstance. The central issue is the use, and in most cases, specific permission or license must be obtained from the owners or licensors of the copyrighted material regardless of the length or amount of the material that is used."
Another dangerous approach is parody. Would it be legal for a local travel agent to use the following lyrics sung to the tune of the Gilligan's Island Theme:
Just call right up and reserve your berth/on a tropic isle trip/Call Bob at Portland Ocean Tours/He'll book you on a ship?
According to Welch, "This is a slippery slope, and requires the potential user of the parody to be very careful and consult with someone who knows the law. A parody is generally limited to comedic use that is specifically making fun of the original musical work, rather than some independent commercial value. If it is not a parody, it is not among the categories of fair use, and could subject the user to infringement consequences, including actual damages and statutory damages, which can be in the tens of thousands of dollars."
Music can be an evocative and powerful component of a radio commercial. Fortunately there are options for local advertisers who want to use music in their ads without paying licensing fees or fines for using copyrighted music. These include:
- Reputable radio stations maintain a large library of royalty free music to be used in radio commercials. These libraries provide music of all genres and can evoke any imaginable emotion, feeling, or texture. The library utilized by Portland Radio Group, for instances, contains more than 60,000 pieces of music.
- Hire a vendor to produce a unique musical signature, jingle, or commercial bed. To learn more about why jingles are effective we suggest the article: Attack of The Worms: Why Radio Advertising Jingles Work. There are many companies who provide this service. One company we recommend is Bluewave Creative.
- Use music in the Public Domain. This is music where copyrights have expired. But you must be careful. For instance, Beethoven's copyright on his 5th Symphony has expired. But the Portland Symphony Orchestra's recording of the 5th Symphony is protected. As a matter of fact, Portland Radio Group's production library includes several royalty free versions of The 5th Symphony ranging from orchestral versions to barking dogs version.
Regardless of the option selected, each one is preferable to illegally using copyrighted music. Music publishers utilize powerful technology to detect and prosecute those who infringe their intellectual property rights.