Rock and a Hard Pace

An issue that comes up regularly when I'm writing music for TV commercials is that of copyright. Someone - the ad writer, the film director, the client's spouse - has fallen in love with a song that's currently being hammered on the radio. Everyone else agrees the song is perfect for the ad and the film editor has even cut the pictures to it. In fact I wish the client would do everyone a favour and buy the damn'd thing, but the rights cost ten squillion dollars. My brief as composer, therefore, is to do something "just like it" (though without the ten squillion dollar price tag). This puts me in a difficult situation: I have to write something that's either wrong, or illegal. Thanks.

What is Copyright?

Copyright is a form of protection provided to the authors of "original works of authorship". It gives the author the exclusive right to control who can make copies of, or make works derived from, the original work. The work must exist in some tangible form: music on a CD, a movie on film, a story on paper. It can't be just an idea floating around in someone's head. There are no formalities to go through to copyright a work; once it has been "fixed in material form" - a song recorded on the composer's cheapo cassette recorder, a movie script hacked out with two fingers on a word processor - copyright exists in that work.

And what the author is being protected from is the commercial exploitation of his/her intellectual brilliance. And fair enough too. Which is why it costs ten squillion dollars to use that song in a TV ad.

Copyright Myths

Here are a few copyright myths I've heard over the years. They are all wrong :

1.  "You're allowed to use two bars of a song";
2.  "We'll be OK if we change every fifth note of the melody";
3.  "I won't be making money out of the song because I'm using it for a charity, therefore I'm not violating copyright";
4.  "They're an unkown band from Nowheresville - we'll be doing them a favour if we use their music";
5.  "The ad is a parody of Star Wars/Titanic/Batman. We can use the original music in a parody";
6.  "We can use the song, and if anyone complains we'll just stop using it".

Unfortunately there are many large grey areas in deciding whether something violates copyright or not. Test cases are littered with subjective phrases like "substantially similar" and "markedly the same in some areas". There is no watertight legal formula for defining how one song is different from another. If the composers believe that what you've done infringes their copyright and if they believe you are gaining from their work, they can sue you. It's as simple as that, and may the best lawyer win. Therefore it's sad to say that copyright protection, if pursued through the courts, is in truth available only to the wealthy.

Performance Rights

As well as the song itself there is also the question of the performance of the song to consider, because once a song has been released on CD etc, there are two sets of rights to consider:

1.  Mechanical rights, which belong to the composer of the song - the copyright we've been talking about, and:
2.  Performance rights, which belong to the artist who has performed the song on the CD etc.

So if you want to use Dionne Warwick's famous recording of "Walk On By" on your ad, you have to get permission from, and pay money to, not only the composers, Messrs Bacharach and David, but also the performer, Ms Warwick.

"OK then," you say, "we'll just pay for the mechanical rights and get someone who sounds like Dionne Warwick to sing it!" This moves us into an area known as "passing off", which means that you are trying to make your audience believe that Dionne Warwick is actually singing, when in fact she isn't. Ms Warwick could convincingly argue that you are using her name for commercial gain.

I find the "passing off" test pretty useful for making a quick judgement on all sides of the copyright issue. If the client wants a "Get Smart" style spy theme, could it possibly be construed that we are trying to make listeners believe that the resulting piece of music is Get Smart, rather than a gentle homage to the genre?

So What Do We Do?

The first thing to do, if someone falls in love with a song but can't have it, is to try and get them to forget the song. This can be exceedingly hard to do, as even the crappiest song played over and over again at briefs, film shoots and editing sessions gains a friendly familiarity that no other song can quite replace. (How else to explain the success of REM and Dave Matthews?) What I need to find out is what people like about the song, what emotion it imparts. It may be that it reminds the client of that sunny evening in late summer when they met their wife/boyfriend/dog, so let's write a completely different "late summer evening" song. Or it may not be the song at all that they like but the strange sound of the guitar, so let's do a "strange guitar" song. Or, alas, it may just be that they've heard the song fifty times a day for the last month, in which case - as I've said - I have to do something wrong or illegal. And that's a shame and a big fat compromise and we all lose, because we end up with something that isn't wholly mine, and isn't wholly the original either.

And What About Original Ad Music Copyright?

As with any piece of orginal music, as soon as I've hummed my idea for your brand new soundtrack into my circa 1981 Sanyo dictaphone, copyright exists in that music, and the copyright is mine!! And you, Mr Client, can't have it!! What you pay me for is the right to use that music for your ad, for a certain length of time and for certain territories. You are not "buying the music". Yes, it is possible to legally transfer the ownership of copyright from the author to another party, but I'm not going to do it, and I don't recommend any composer sell their inherent right to own their work. Even if the client is offering a mouth-watering amount of money I believe it's still possible to negotiate a deal whereby the client gets to use the music however they want and the composer gets the mouth-watering money BUT still retains ownership of the copyright.

(The above opinions are a guide only and are in no way intended as a replacement for qualified legal advice.)