Marketing by Music: Jingles in the jungle

You have found the perfect track for your ad, so now comes the hard part - getting permission to use it.

Music's ability to evoke a memory and take you back to a specific time or place is legendary. This quality is gold dust for advertisers - and is something music owners are only too aware of. That is why the cost of using music in commercials can make your eyes water. The music industry is vigilant in protecting its assets when it comes to advertising and there are some important things to remember when you want to use that heart-stopping track in your commercial.

First, get hold of the necessary licences before you use the music. This is essential. If you don't do this you will have to pay a considerably higher licence fee when you are found out. Worse, the rights owners could apply for an injunction to pull the commercial and hit you with a legal claim for damages. Not great publicity for the agency or the client.

Take the ongoing court battle between Eminem, Apple Computer and its agency, TBWA\Chiat\Day. The rapper is suing over the use of Lose Yourself in a commercial for Apple's iPod and iTunes (Viacom, the owner of MTV, which broadcast the ad, is also facing charges). Eminem alleges no permission was given to use his track and its use constituted false endorsement, entitling him to millions of dollars in damages.

So, what needs to be done to secure music rights for a commercial? Getting hold of rights can take a lot longer than you may think. It usually takes weeks rather than days. With this in mind, it is crucial that agencies design a production schedule that includes a realistic timetable for acquiring licences. Why does it take so long? Well, there are a few logistical headaches to bear in mind.

First, if an agency wants to use an original sound recording of a song rather than commission a cover version, you will need to have your negotiation skills handy to deal with two parties: the owner of the song (usually the writer's publisher) and the owner of the recording (usually the record company).

It is not uncommon for the song rights to be owned by more than one person.

You will have to come to an agreement with each owner's publisher before the song can be used.

Now, imagine you are running a pan-European campaign. This complicates matters. If you are using a song in an ad that will run in more than one country, the rights may be administered by a number of local publishers and the agency must get the go-ahead from each.

And, of course, you cannot forget the writer. Before the publisher or record label gives you the licence, they may need the consent of the artist, who will want to know what his or her song is being used for. Few would accuse Johnny Cash's estate for being precious when it refused to allow the great man's classic Ring of Fire to be used in a campaign for haemorrhoid products earlier this year.

Tracking down the relevant rights owners may prove a drag, particularly if the song is obscure. If you get stuck, the UK collecting society, MCPS, offers a handy reference source for identifying the owners of songs released in the UK. If you are running an international ad, there are collecting societies abroad that do much the same thing.

Giving full details of the music, brand, agency and campaign to the rights owners is necessary but adds to the wait. They need this information to work out a fee and set limits on how the music is used.

With the time factor in mind, it makes sense to have some solid contingency plans in place in case you are refused permission. The publisher may not want to be associated with the campaign or brand; it could have plans to increase the value of the song that do not tally with how you want to use it; it could have signed an exclusive deal with someone else or it could demand a huge sum.

Once the rights owners have been found and they have agreed to grant you the licences, the nitty-gritty of negotiating terms begins. First, make sure the licence covers every way you intend to use the song. Try to keep the terms of use as flexible as possible. At best, the licence should allow the music to be used in any spot up to 60 seconds in length.

The owners may try to to narrow the terms so you have to pay more for additional uses. It makes sense to extend the terms of the licence and agree a price when you sign the original deal. It works out cheaper than renegotiating after the original licence has expired. Do not forget to state the conditions and note the date.

If you want to use any of the song's lyrics in your ad campaign, you will need special permission - especially if you want to change or parody them. Be careful to check out the warranty you are given by the rights owners. Make sure they actually have the rights to grant it and that these rights do not infringe those of any third party.

Finding a path through the jungle of music use is not as wearying as you might think as long as you stick to a few golden rules. If your heart is set on a track, be patient and give yourself plenty of time.

RULES FOR USING MUSIC

1. Never avoid getting a licence. It could cost you more in fees or, worse, will land you in court.

2. Never get a licence at the last minute. You will need plenty of time to negotiate the deal. It is best to build a timetable into your production schedule.

3. Remember to consult all the relevant rights owners. This could mean striking deals abroad if your campaign is to run internationally.

4. Never exceed the licence's terms of use. Agree as flexible a deal as possible to avoid fees for extra uses.

5. Always have a contingency plan in case a licence is refused. You can never be over-prepared.

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