PRODUCTION & POST-PRODUCTION: Hitting the right note

Times are hard, so closer ties between the ad and music industries could be the saving of both - but only by avoiding unnecessary copyright pitfalls, Dominic Farnsworth says.

You've presented a great script to your client - they love the creative vision, they love the strength of the communication and they really love the track you've picked which draws the whole commercial together and will be hummed by people in their thousands long after the spot has ended. Job done.

Not quite. The agency is faced with the headache of needing various licences to be able to synchronise the track: one from the music publisher to use the original song and another from the rightsholder, usually a record company, for the use of the actual recording of that song. Also, depending on the arrangements between artist and record company, the artist's consent is sometimes required, even when they do not hold either of these copyrights.

The first and most obvious hurdle at which the rights clearance process often falls is the money: the licence fee requested is just too high.

The second, and often more irritating, hurdle is when that permission is refused because the rightsholder or artist feels the advertiser or the script is inappropriate, or if the artist has a moral objection to any use of their music in commercials.

Faced with the dilemma of not being able to clear the track, possibly not having enough time to go through the approvals process for another and with a client by now firmly wedded to the sound, agencies often have a soundalike specially composed. While doing this might be cheaper than licensing the real thing and avoid the need for tortuous rights clearances, it can be a legal minefield.

Music production companies engaged to produce soundalikes are briefed to create a piece that sounds similar enough to the original to keep the client happy but not so close that the agency or client gets sued. There is a fine line between a soundalike that is merely reminiscent of the original and one that infringes the original's copyright or might give rise to a claim of false endorsement by the artist. Unfortunately this can be a precarious knife-edge to walk.

Copyright is infringed when the soundalike copies the whole or a substantial part of the original - this is a notoriously difficult assessment as it is not a quantitative calculation of the amount copied, and it is also subject to a qualitative comparison of the elements copied - lines from a catchy chorus or a distinctive musical hook would be given more weight in the comparison. The matter is further complicated by being ultimately decided by a judge, prone to wielding his or her own subjective views, and often having trouble recognising a Beatle let alone comparing rap lyrics.

Also, if the music is sufficiently similar - and, to complicate matters, the test here is not the same as for copyright infringement - it might be an act of passing off or false endorsement if the similarity was such that it lead the public to believe that there was some form of commercial connection between the commercial and the artist. This is more of an issue with the use of soundalikes in voice-overs, and was memorably illustrated by the Bette Midler case in the US. Here, Y&R wanted to use her recording of Do you want to dance? in a Ford commercial. She said no, so they hired one of her old backing singers to record a soundalike - which sounded so alike that many thought it was Midler herself. The court held that Ford were liable "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product."

Tom Waits, renowned for his strong stance against the use of his music in advertising, brought a successful claim in the US when Doritos used a soundalike in a commercial. He also took action against the use of non-soundalike Screaming Jay Hawkins' rendition of his Heartattack and Vine in a Levi's commercial, as the rightsholders failed to get his permission when they should have done.

The Verve's Richard Ashcroft, fuming after Vauxhall used Bittersweet Symphony in an ad, told fans not to buy Vauxhall cars. This took place even though they had secured the relevant licences and The Verve had no right of approval. Amusingly, The Verve's own rights approvals process wasn't as watertight as Vauxhall's - their label Virgin found itself on the wrong side of the law for not getting a licence for the strings section from a Rolling Stones track that it had used in Bittersweet Symphony.

The music business is one of the few presently suffering worse than the ad industry. With traditional revenue platforms under fire from digital copying, the music business is increasingly strengthening its partnerships with brands to boost earnings. The power of advertising to boost music sales is no secret - it is a known phenomenon that tracks can achieve greater sales on re-release after having been featured in a successful campaign, and successful bands launched from commercials - who had heard of Babylon Zoo before the Levi's ads? Moby's album Play has been an Aladdin's Cave for advertising as every track has featured in at least one commercial, some in several.

This relationship between music and brands is being increasingly leveraged - the first single to be released from Mary J. Blige's new album will break initially as part of a Reebok commercial in the US, the single hitting the stores only a week or so later. The campaign will be reinforced through in-store displays at Footlocker outlets with Reebok sponsoring her upcoming tour, as well as releasing a Blige line of clothing.

In the UK, Bartle Bogle Hegarty has taken the innovative step of launching Leap Music, an in-house music publishing company established to acquire rights in music used in commercials. This should keep the licensing costs down for its clients and allow it to lucratively exploit full-length versions of tracks where the commercial has been a success.

Deepening ties between the music and ad industries shows business foresight, but adds layers of contractual complexity and increased financial risks if mistakes are made - if it all goes Pete Tong, the agency could be more 50 Cent than Bling Bling.

THE APPROVALS PROCESS

Research: Has the artist got a track record for refusing consent? If so, stay clear or approach for agreement in principle before pitching your idea to the client.

Timing: Move fast - the approvals process takes time and you'll need a buffer period to source new music if you get knocked back.

Co-ordination: Don't enter a licence with one of the music rightsholders until you are sure that the others will sign too, otherwise you could be throwing money away.

Get it in writing: Verbal confirmations have a knack of being "misinterpreted".

Protection: Obtain the licensor's warranty that the music you want to use does not infringe any third party rights.

Professionals: Take legal advice to ensure that the soundalike is on the right side of the legal line and that your contracts cover all bases.

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