Ethics in Advertising, Part 3: Music in Advertising

In this series, we’ll discuss laws and rights in relation to advertising elements. Far too many DIY designers, freelancers, content generators, social media gurus, and even trained design veterans don’t know the laws surrounding elements such as music licensing. Stamp’s Stephen Poff is a filmmaker, photographer and singer/songwriter and has worked in almost every outlet from head engineer at a recording studio, graphic artist at a newspaper and several magazines, and videographer/producer for a cable advertising company in addition to writing and producing several independent albums and movies. Please keep in mind that we are marketing professionals, not attorneys. This information is not the same as legal advice. Should you feel you need legal advice, please contact your attorney.

Earlier in my advertising career, I was working with a lot of mom-and-pop outfits. Folks who were eager to put their kids into their commercials, look at the camera while talking on the phone and maybe wave at the end of the spot. As you can imagine, these spots were super exciting and needed nothing more than a call to action at the end to get their phones to ring (insert heavy dose of irony here).

During the course of planning for the shoot, we would often try to steer them into fresher ideas—often with little success—and end up right back where we started. So it never came as a surprise when the client would watch their masterpiece and find that it fell flat. They would ponder, “What does this need to make it exciting?”.  Almost always, the answer was a famous piece of music.

Why is this always the first thought? Well for one, there is instant recognition. Who wouldn’t want their audience humming along to the Black Eyed Peas or Billie Eilish while they displayed their wares? On top of that is the lyrical content or the energy of the song. But while we can all agree that Europe’s “The Final Countdown” could really add some punch to almost any spot (see Geico’s version), can you use it? More importantly, should you?

The short answer is… how big is your budget?

Music is a complicated web of ownership. It begins as the intellectual property of the writer or publishing company and then expands out to performance which often belongs to the record company. So the first thing you’ll need is permission from the artist. This can often be difficult depending on what you are selling and how the artist feels about their songs as commercial vehicles. Once they agree, it’s often not hard to get the record company to agree to the performance rights.

So now you’re asking, “How much will it cost me?”. Probably tens of thousands of dollars for a regional campaign, maybe millions for a national campaign. This is a negotiation process and it really depends on a myriad of different situations such as the popularity of the song and how it’s being used.

There are, however, ways around some of this cost. Our client, Baptist Health, wanted to use the Turtles’ song “Happy Together” to demonstrate their new partnership with UAB. What we discovered was that the price was a bit lower if we didn’t use the Turtles’ actual performance of the song. So in a pinch, I went back to my home studio and knocked out my own version of “Happy Together”, bringing the price down to a much more manageable level. 

So should you do this? Does the price of using a popular song make sense for your brand? Maybe… but starting with a well-thought-out script and visual story might be even better.

More than once I’ve heard, “Why do they want so much? Won’t it be more exposure for their music?”. The answer is that you wouldn’t want to use the song unless it was increasing YOUR exposure.

There are exceptions to this rule. There have been many campaigns by major retailers and manufacturers that have actually launched the careers of artists and made their songs instant hits. Two that come to mind immediately are Old Navy’s inclusion of Ingrid Michaelson’s “The Way I Am” in a sweater commercial and Feist’s “1234” in Apple’s commercial for the iPod Nano. I’m sure these artists were very fairly compensated, but the power dynamic was definitely tipped in the opposite direction.

So if you don’t have Rolling Stones money, my suggestion for music might be to reach out to a great local band and see what kind of material they have available (you might be surprised!) or use a music subscription service like PremiumBeat.

My money is on getting a better script ;-).

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