Using music in commercials and other broadcast station productions can be treacherous. As we’ve written before, contrary to what some stations might think (based on the questions we often get from broadcasters around the country), a station’s ASCAP, BMI and SESAC royalties do not give them the right to use popular music in their station productions – or in their commercials. Nor do they give you rights to use music in video productions used repeatedly on a station, or on a station’s website. Hearing an award winner at the recent broadcast awards banquet at the Montana Broadcasters Association annual convention thank the music publishers that gave her permission to change the lyrics of a well-known oldie for her PSA for a local animal shelter warms a lawyer’s heart, recognizing that there are broadcasters who understand the rights issues. But from questions that I get all the time, I fear that many other broadcasters don’t.
ASCAP, BMI and SESAC are commonly known as the Performing Rights Organizations (or PROs), as they grant music users only a single right – the right to make public performances of musical compositions (or "musical works"). A musical composition is the words and music in a song – not the actual recording done by a particular singer or band. The composer and lyricist of the song have a copyright in the musical composition, though the right is usually assigned to a publishing company to administer. Each copyright in a composition gives its holder the right to exploit it in several different ways – and then user needs to get the rights to use the composition in any of these ways. The different rights include the right to publicly perform the composition (e.g. to play it before an audience or to transmit it to an audience by means of radio, the Internet or other transmission media). But the copyright holder also has the right to limit users from making reproductions of the composition (e.g. a recording of the song or any other “fixation” of the composition), distributing the composition (e.g. selling it or otherwise making it available to the public), or making a “derivative work” (taking the copyrighted work, using it, but changing it in some manner which, in the case of a musical composition, is probably most commonly done by changing the words of a song). So, for the Montana broadcaster to take a well-known song and to change the lyrics for her PSA required that the broadcaster get permission to make a derivative work (and probably to make reproductions, too, if copies of the re-recorded song were made).
This same analysis applies to many other common uses of either musical compositions or “sound recordings” (an actual recording of the composition by a recording artist). If either the composition (e.g. the tune of a song) or a recording of a song itself are used in a commercial, PSA or promotional announcement, the party wanting to make that use has to get the rights directly from the copyright holder – the publishing company for the composition and usually the record label for any popular sound recording. The PROs don’t have the right to give permission for these sorts of uses. Instead, the PROs were formed simply to make it easier for composers to license their music to the media and other venues wanting to perform their music, and to make it easier for users to actually license that music. So, for the ease of administration, most composers have made available their musical compositions to one of the three PROs so that it can be performed at concert venues, in hotels and stadiums, on radio and TV stations, and on the Internet – across the country. While recently, some publishing companies have begun to withdraw some of their performance rights from PROs to try to extract higher fees from digital music services (see our article here), most still license their music through ASCAP, BMI and SESAC.
In the digital world, SoundExchange has performed the role of a PRO, providing digital music services the right to publicly perform sound recordings (in the analog world in the US, there is no royalty necessary to publicly perform a sound recording). But, the digital public performance is all that SoundExchange licenses – so a radio or TV station wanting to use a sound recording in a commercial or in some other audio or video production, will usually need to get specific permission from the artist, their label, or whoever owns the copyright to their sound recording.
The rights the PROs administer are limited to the public performance right, so if you are planning more extensive uses of a musical composition or sound recording, be sure to get the necessary permissions. With more and more productions ending up on the Internet, copyright holders have an easier time finding infringing uses than might have been the case in the past. And failing to get the proper rights can be a costly mistake.