When Copyrights Trump Commercial Creativity (Spoiler: Always)
I was listening to radio this morning and heard a spot for a local restaurant trying to be relatable by exemplifying how hard it is for working adults to find time to eat breakfast. They preached the importance of the first meal of the day. And wouldn’t you know it? They have a quick, easy, affordable breakfast sandwich you can pick-up on your way to the office to help solve your problem. Not a bad spot overall, but at one point the announcer says, “before you know it Heigh-Ho, Heigh-Ho it’s off to work you go!” and then fairly quietly layered underneath was the unmistakable original recording of the seven dwarfs singing the song.
That’s a problem.
- It’s not an original work created by the advertiser.
- It doesn’t qualify under “fair use” exceptions.
- The song isn’t in public domain. The only songs that are public domain in the USA are songs and musical recordings published in 1922 or earlier. This song was released in 1937. (Check out the website here with examples of public domain works http://www.pdinfo.com/)
So, that means either Disney licensed copyright permissions to a local breakfast joint in central coast California or the restaurant and radio station stole it. It probably wasn’t intentionally and in fact, it was a solid creative choice, but the law doesn’t factor in intent, creativity or ignorance.
What should they have done? Here’s some advice from business law firm Brooks/Pierce:
“To secure a license for a musical work, you will need to contact the publisher directly. You can obtain publisher contact information using the repertory databases maintained by ASACP (www.ascap.com), BMI (www.bmi.com), SESAC (www.sesac.com), and/or the Music Publishers’ Association (www.mpa.org). If a sound recording license is also needed (e.g., for dubbing an original recording), you will also need to contact the record company directly. Record company contact information can sometimes be obtained by the music publisher and is often also available on the copy of the recording (e.g., the CD liner notes). Publisher and record company contact information may also be located on the U.S. Copyright Office’s website (www.copyright.gov).”
That’s a lot of time, work and likely money for a :07 sample of a song in a :30 radio ad that you’re charging 50-bucks a spin for on your radio station.
Here’s the kicker. Even if the radio station didn’t produce the spot they can be held liable for copyright infringement. (Production Directors and Traffic Directors listen up!) Penalties can range from $150,000 to $250,000 per infringement and up to 10 years in prison. And in this case, Disney doesn’t shy away from going after little guys, because once you knowingly allow one entity to infringe a precedent is set. Typically a cease & desist will be the first action taken, but I wouldn’t press your luck.
Be careful out there.
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