Is it copy right infringement?

Can I use this song in my advertising? How many notes do I have to change for it to be considered original and not illegally copying that smash hit number one song in the music charts? Being in the musical jingle business, I get a lot of calls from advertising agencies asking me if I can create a jingle for them that sounds just like such and such song by so and so. They then ask me if I can change it enough that it is not subject to copy right infringement. I get asked this quite a bit and have had to give the same answer to so many agencies that I figured there might be more agencies and businesses out there asking the same question.

            The Reason for wanting to use a popular song in your advertising is easy to guess. It is well recognized, loved by many and successful. Who wouldn’t want to have that in their advertising? There are so many popular song lyrics that work just right for complimenting a business’s product or service, that it seems as if it were meant to be. So why don’t advertisers use popular songs in there advertising? The answer to this is Money, not just money but Big Money. Having had an automotive dealer ask me if he could use a song that was popular and had lyrics of the song the same as the dealer’s name, I researched for him how to by the rights to the song and find out how much it would cost .What a perfect fit it was, the song sang his name right in the lyrics. I did find the song through listings of the performing rights organizations BMI and ASCAP. I found the song title and publisher and song writer and called the publisher (owner of the song rights) and asked nicely how much it would cost to have this small automotive dealer in a small market (less that 300,000) to use this song in there advertising for about a year. They answered with out missing a beat, nicely and confidently the cost of using this song. I responded back to them in a surprised manner “How much!!” I was not quite ready for the dollar amount given. This was a surprise to me and I knew it would be a surprise to my client. I went back to the nice automotive dealer and explained that to use this song that was such a perfect fit in his advertising, was going to be in the 6 figure price range, I got petty much the same response from him that I gave when I first heard it. The next question I got is a question I’ve gotten quite a bit since then, “How much of the song do I have to change for it not to be copyright infringement? This is where the story begins. I am not an entertainment attorney and nor do not want to be, but I have done research in this area and had the pleasure of talking with some of the biggest music attorneys in the music biz to get these questions answered in a clear cut form for my clients and I would like to share them with you. I found out first and foremost, It is illegal to use a song in your advertising with out permission from the owner of the song. That is clear enough and probably quite obvious to some, but on any given day you can hear a company using a song in their advertising that is clearly copied from a big name artist simply changed to fit the companies name and or message. Is this copyright infringement? I hear some people say ‘not if you change so many notes or bars of the song. It will change the song enough not constitute infringement”. I also hear “If you change the key of the song than you can get away with it”. Here is what I found in my research as the truth of the matter. I found from one of the most respected music attorneys in the business, that if the song you are using has the same similar intention or resemblance as the song you are getting the idea from, then it IS copy right infringement. Even if you change a few notes or lyrics or make a key change of the song, it is still recognized as that same song and you can be held liable for copyright infringement. The radio station and or television station can be held liable also for playing it. You as the agency and or producer of the new song can also be held liable. You can ask, well how do so many advertisers get away with it? Well this is the tricky area. Have you ever been to Vegas? I have talked with advertisers that do this quite obviously and have not been charged with copyright infringement. This does not mean that they have not been warned, they just have not been charged. For a music publisher or performance rights agency or song writer to take a business to court for copyright infringement, the case has to have a large enough return on investment for them to put their effort and time into it. If the violation is for such a short period of time and in such a small market it is not worth the effort to pursue the infringement. That is not to say they won’t, it just is not in their best interest to focus on such small matters. Now if it is a national advertisement run for quite a long period of time then it is well worth their effort to go after them. They can even let you get away with it for as long as they want you to get away with it and then go after you for infringement all the way back to the first day you started using it. So why do people say if you change the notes or use only so many bars of a song you get away from infringement?  Even though it can still be considered copyright infringement, altering the song makes it more difficult to prove in a court of law that it has the same intention or resemblance of the original song and this goes back to the time and effort needed to prove the infringement of copyright. The advice I give my clients is create an original song that is all yours, one that will grow with you and is all you and no one else. This will be much more beneficial in the long run and might even be more popular. Some jingles are more recognized through out the years and even more iconic than some past popular songs. If the clients do want to pursue using the original song, I recommend them consulting a respected entertainment attorney before going ahead to be on the safe side and to do the right thing. The music industry has enough on their plate with illegal down loading of music. Just ask my kids.

Michael Beardmore is the owner and lead producer of The Jingle Company who creates custom music for radio and television since 2000 and has worked with some of the most successful gold and platinum recording producers in Hollywood California. He can be reached at mike@thejinglecompany.com  or at his web site at www.TheJingleCompany.com 

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