A guide to buying music for marketing procurement executives — Unlicensed Use Part 1

An expert insight into the licensed (or unlicensed) use of music for marketing procurement professionals from our guest writer Richard KirsteinResilient Music.

In our last post The Rise & Rise of Sync, we examined how synchronisation licence income has become vital to music rights owners such as record labels and music publishers. For a refresher on Synchronisation, refer to our Songs vs. Recordings blog.

As in all sectors, the recipients of vital income fiercely protect its source. In the music rights world, this means ensuing that any brand or agency using copyright music in a campaign, secures the appropriate licences and pays the applicable fees. Music rights owners have a very low tolerance for unlicensed use and the penalties for those who flout the rules can be harsh.

Bill Withers The Essential Bill Withers

Whilst Bill Withers might plead listeners to “Use Me,” the rights owners of his songs and recordings would add “only if you pay the invoice before the first air date!”

(As an aside, I love this clip of a live performance of “Use Me” – Bill Withers is indeed one of the greatest artists. His band had an amazing ability to create infectious grooves yet make it look so effortless!)

Q: Why’s this relevant to Marketing Procurement Executives?

A:  If your role is to “police” the activities of Marketing, you’ll be familiar with a mindset that treats campaign materials as “brand assets” to be used freely as the brand wishes. This is fine, provided that the brand owns all the IP in those assets. However, this is not the case when campaign materials contain third-party controlled music. The restrictions imposed by the music rights owners dictate the use of the entire asset which contains that music. Brand marketers who fail to understand this concept expose their companies to potentially very high costs.

“Ring The Alarm”

In my role as a music procurement consultant, it sometimes feels like my primary task is to protect clients – especially new ones - from themselves. When discussing the proposed use of a music track, particularly a short or minor online use, I occasionally hear these comments from enthusiastic young marketers:

  • “Who’s going to know?”
  • “Surely they won’t mind?”
  • “Can we get away with this?”
  • “Why should we pay for such a small use?”
  • “It’s only YouTube – Everyone posts stuff all the time”
  • “It’s great promotion for the band”
  • “All the other brands do it”
  • “We don’t have any budget left but we must have this track”
  • “What’s the worst that can happen?”

If you hear any of the above phrases, follow Beyoncé’s advice to Ring The Alarm and call your colleagues in Legal! You might be able to prevent an unlicensed use occurring and so avoid an expensive legal claim for infringement of copyright.

“Somebody’s Watching Me”

Many music rights owners employ both human staff and sophisticated audio-recognition systems to trawl the web for films containing their music. Typically these will be posted on YouTube and in a future blog we’ll look at Google’s “Three Strikes” rule, and how those who flout this have their content taken down.

Google and music rights owners frequently collaborate on domestic user generate content (“UGC”) which contains copyright music by selling advertising around it. An innocuous family film of children dancing to their favourite chart hit is unlikely to incur the wrath of the relevant record label and music publisher if the parents failed to secure sync licences in advance. However, if a brand takes the same approach for a marketing communications video, the outcome will be very different.

So, urge your Marketing colleagues to take note of Rockwell’s observation that “Somebody’s Watching Me”. If the brand posts a film without appropriate sync licences in place, it won’t go unnoticed by the rights owners!

“Let’s Face The Music And Dance”

So, what can you expect if an unlicensed use of music slips through the net, the film is posted on YouTube and the music rights owners spot it?

Does the Marketing Director get summoned by the CEO who’s brandishing a cease-and-desist letter from a major music corporation?

How does your company follow Nat King Cole’s advice?

Look out for our next post – Unlicensed Use Part 2 in which we’ll look at the various likely outcomes which range from penalty fees to court injunctions and costly lawsuits.

 

BTW, if you’re wondering why it’s acceptable to refer to songs within this article, it’s allowable to quote song titles - though not extracts of lyrics - without the publisher(s) approval. The links are to films posted on YouTube by third parties, not by myself nor Spend Matters UK. However, this would NOT apply for a piece of marketing communication.

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