Using an artist’s song in advertising can make good business sense. Play a catchy song, people will recognise it, and they will remember your brand. Right? While choosing to use an artist’s song can be clever marketing, it can also open your business to legal risks. This article will break down the legal considerations you should keep front of mind when using an artist’s song for advertising.
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What Happened With H&M?
Retail giant H&M found itself in an awkward position a few years ago after claiming that a song used in one of its Instagram advertising campaigns “was specifically produced for us to use in this ad”. It turned out that the song was produced by Melbourne musician and entertainment lawyer Harvey Sutherland for his 2015 EP.
After being alerted by his fans that H&M was using his song, Sutherland posted on H&M’s Instagram page: “This is my song Bamboo that you are using without approval, licence or credit”. The ad campaign was removed, and H&M apologised to the musician.
How to Use an Artist’s Song
Before you use an artist’s song in any advertising campaign or communications, you must obtain permission or a licence from the copyright owner. In some cases, copyright is not only owned by the artist but also owned by the production company or songwriter.
A licence agreement is an agreement between you and another party that allows you to use that other party’s copyrighted material for a set period under certain conditions. In most circumstances, you pay a fee in exchange for the right to use the copyrighted material.
It is important to note that you do not own the song’s copyright if you enter into a licence agreement. Therefore, you cannot benefit from any royalties. The licence merely permits you to use the original work and often requires you to provide due credit to the artist.
Continue reading this article below the formWhat to Consider in a Licence Agreement
Several collecting societies manage some of the rights and offer licencing terms on behalf of copyright owners.
For example, the Phonographic Performance Company of Australia (PPCA) is a collecting society that represents the interests of record labels and Australian recording artists and grants licences, on behalf of it’s members, to broadcast recorded music or music videos. APRA AMCOS offers licences to authorise the use the copyright in the music and lyrics on behalf of their members.
Otherwise, you should enter a licensing agreement directly with the copyright owner/s.
When entering into a licence agreement, it is vital to consider:
- exclusivity;
- duration of the licence;
- restrictions;
- termination; and
- fees.
Exclusivity
Do you have exclusive use of the licence? Generally, artists want to refrain from entering into exclusive licences because it restricts them from licensing with others. However, if you are seeking to use their material to differentiate your product in line with your marketing plan, negotiate exclusivity if you can.
Licence Duration
Ensure the duration of the licence extends throughout your marketing campaign. You may be liable for copyright infringement if your licence expires before your marketing campaign.
Restrictions
It would help if you considered whether the licence agreement restricts the use of the copyrighted material. If it does, you will need to comply with them.
Termination
Your licence agreement should include a dispute resolution process. It should also specify how you and the artist will terminate the licence.
Fees
The artist will try to negotiate the royalties received for your use of their copyrighted material. It is crucial to have a lawyer’s help in negotiating fees to ensure you agree on a fair price that aligns with your commercial goals (and reflects the investment value of the marketing campaign).
Finally, it would help if you also considered any other licence conditions that may impose obligations on you or affect your rights.
Key Takeaways
There are severe penalties for breaching another’s intellectual property. Therefore, if you want to use an artist’s song in your marketing campaign, you must ensure you have a licence. Negotiating and agreeing upon this licence is a delicate process. Additionally, obtaining legal advice in this situation is crucial to ensure the licence appropriately reflects your commercial position and goals.
If you need assistance drafting or reviewing a licence agreement, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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