Choosing to use an artist’s song in an advertising campaign 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 be legally risky. This article will break down the legal issues involved if you use an artist’s song for advertising purposes.

H&M in Hot Water

Retail giant, H&M, found itself in an embarrassing situation after claiming that a song used in one of its most recent Instagram advertising campaigns “was specifically produced for us to use in this ad”. It turned out that the song was actually 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 has since been 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 first obtain permission or be granted 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 of time, 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 if you enter into a licence agreement, you do not own the copyright of the song. 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.

What to Consider in a Licence Agreement

If the artist is a member of APRA AMCOS or the Australian Record Industry Association (ARIA), you may be able to get a blanket licence from one of those associations.

Otherwise, a licensing agreement should be entered into 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 do not want to enter 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, it may be worthwhile to negotiate exclusivity if you can.

Duration of the Licence

You should ensure the duration of the licence extends over the period of your marketing campaign. If your licence expires before your marketing campaign, you may be liable for copyright infringement.

Restrictions

You must consider whether the licence agreement places any restrictions on 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 set out 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 important to have a lawyer’s help in negotiating fees, to ensure you agree on a fair price that is in line with your commercial goals (and reflects the investment value of the marketing campaign).

Finally, you should also consider 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 (IP) under the Copyright Act 1968 (Cth). As was the case with H&M, breaching an artist’s copyright may also damage the goodwill and reputation of your business.

If you want to use an artist’s song in your marketing campaign, you must ensure that you have a licence to do so. Negotiating and agreeing upon this licence is a delicate process. Get a lawyer’s help to ensure the licence appropriately reflects your commercial position and goals.

If you need assistance drafting or reviewing a licence agreement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Nessim Malak
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