Get Your Brand’s Groove On

Masters of Advertising Law Conference attendees: Scroll down for CLE materials

A panel of experts from both independent firms and the brand side reviewed music in advertising, including performers' rights, different types of music licenses, how to engage cover artists to save budget, and key things to know when preparing to negotiate for the rights of a song with a publisher or record label.

Key Takeaways

When licensing music for an ad, brand marketers or their agency partners must consider three critical things:

  • The music of the song
  • The lyrics of the song
  • The recording of the song, otherwise known as the master.

When considering a song for an ad, marketers must first determine which of the above they will need to get permissions for. These three components can each be owned and licensed by a different person or entity. Typically, however, the song writer(s) own the music and the lyrics, while the record label owns the master.

Performer's Rights

Beyond securing rights to music, lyrics, and masters, marketers must also consider right of publicity issues when using songs by popular artists. Laws related to right of publicity are written at the state level, with 30 states having some type of law. These laws vary in scope, but typically deal with things like a celebrity's name and likeness, voice, catchphrases or taglines associated with the person, or mannerisms. Knowledge of intentionally violating this law is not usually required to prove infringement, nor is proof of actual damage.

Sometimes these issues arise even when not using a celebrity's music. For example, Ariana Grande recently had a dispute with Forever 21 for an ad which used a look-a-like, but featured none of the pop star's music.

Song Selection

It's key to remember that some song rights owners do not permit the use of their songs in advertisements. Negotiating with such rights owners will be time-consuming and expensive. It's also important to understand if the brand wants a specific version or section of a song or if a cover is acceptable. If a specific version is desired, negotiations could once again be time-consuming, and the rights could be expensive. Consider hiring someone to record a cover of the song to save on budget.

Brand marketers should lean on the advertising agency responsible for the creative to secure all necessary rights.

Types of Licenses Relevant to Advertising
There are four types of licenses to consider when working to secure the rights of a song for inclusion in an ad:

  • Synchronization licenses: The licensee is granted the right to synchronize the musical composition in timed relation with audio-visual content. This type of license is required to use a song in a visual commercial, and it must be obtained from the copyright owner.
  • Masters use licenses: The licensee is granted the right to use a specific sound recording in a commercial. This is required if you are using a pre-existing sound recording and not a cover made for the ad.
  • Performance licenses: The licensee is granted the right to perform musical composition publicly, which includes transmission on radio or television broadcasts.
  • Publicity rights licenses: The licensee is granted the right to use a performer's or composer's name or likeness (or other aspect of identity) in a commercial.

Preparing for Negotiations

The panel shared a series of key questions brands or agencies should be prepared to answer when negotiating with a song publisher or record label for the rights to a particular song. These included:

  • What is the product or service being promoted?
  • In which countries or territories will the commercial be broadcast?
  • What media will be used (TV, radio, social media, etc.)?
  • How many times will the ad run?
  • For how long will the ad run?
  • Does the brand want exclusive rights to the song in question?
  • Will the brand or the agency be paying SAG-AFTRA or do those payments need to be waived?

CLE Materials

Source

"Get Your Brand's Groove On." Margaret Esquenet, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP; Jeremy Roe, general counsel, U.S. commercial at Ferrero North America; Craig Moore, senior counsel at Wells Fargo Bank, NA. 2022 ANA Masters of Advertising Law Conference, 11/9/22.

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