The "Happy Song: was composed and performed by Pharrell Williams. It seems to be oozing out of the pores of pop culture. The song began its trek into the public's collective consciousness in 2013 on the soundtrack of Despicable Me 2 and reached the number one slot on the Billboard charts on March 8th of this year having sold more than 5.6 million copies. You hear the song almost everywhere. But there is probably one place you'll never hear it: in radio commercials advertising Maine small businesses. But it's not from the lack of trying.
During the past 60 days, our radio stations have received several requests from local advertisers in Portland, Maine to use The Happy Song as part of their commercial message. A real estate agency, a jewelry store, and a daycare facility all wanted to leverage the song's popularity to increase the revenues of their own business. But the Constitution of the United States of America has put the kibosh on this stroke of marketing genius.
We The People
Article One, Section VIII of the United States Constitution protects The Happy Song from Maine small business:
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. This includes Pharrell Williams.
The Copyright Act of 1976
Over the past 200+ years, Congress has added specificity and clarity to this constitutional provision. 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 The Happy Song in a local commercial anytime soon. According to Welch, "A copyright on any work, music or otherwise, lasts the life of the author plus 70 years." So even if Pharrell Williams tragically died today, The Happy Song would still remain under copyright protection until 2084.
Violating copyrights can be a cripplingly expensive proposition. According to attorney 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 L&R Productions.
- 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.