How many seconds of a song can you ‘borrow’ for your ad for free?

AutoriaiInga Lukauskienė, METIDA’s associated partner, attorney-at-law, patent attorney, court mediator; Monika Juškaitė, lawyer

dainomsEvery day on television, over the radio, in malls and other public spaces, we hear commercial messages accompanied by music or some chords from a popular songs.

For the ad to be as catchy as possible, advertisers are not averse to using both eye-catching images and various pieces of music that the consumers eventually come to identify or connect with the goods or services the song is used to advertise. But when we see or hear this kind of advertising, it is not always that we think the song or a part of it is actually also an object of copyright. Besides, advertisers often wonder if the permit from the author of the music needs to be obtained so that several chords from a song can be used in an ad.

Advertisers who create ads with music playing in them often assume that brief fragments or a few chords should not enjoy the protection of copyright because similar samples or sounds can be used in pieces of music by several authors of composers. Therefore, as far as public interests are concerned, chords should be free to use with no copyright protection. Advertisers also often claim that they only use just a small fragment or several chords taken from a certain piece of music and therefore they do not violate any copyright that may be attached to the music as this type of use must be permissible to safeguard public interests.

However, this is the wrong approach. Even when just a few chords or sounds from a piece of music are used in advertising, it still is the product of another person’s creative work. Even a few chords from a piece of music can be enough to identify a particular song and that would be constructed as a copyright violation.

An excellent case in point would be the dispute between the rapper Vanilla Ice and The Queen and David Bowie that started back in 1990. The dispute was sparked by Vanilla Ice using a sample in their song ‘Ice Ice Baby’ (https://www.youtube.com/watch?v=rog8ou-ZepE) which was almost identical to the melody that plays in ‘Under Pressure’(https://www.youtube.com/watch?v=a01QQZyl-_I), a song performed by The Queen and David Bowie. It was not just the fans who noted that these two songs sounded quite a bit like each other: the similarity was noticed by The Queen and David Bowie, who sought to sue Vanilla Ice over copyright infringement, even though Vanilla Ice first claimed he used said sample with some adjustments and modifications, which made it an original product of creative work. However, the dispute did not end up in court because Vanilla Ice eventually admitted having used the opening tune of the song by The Queen and David Bowie, and agreed to pay a compensation. This example shows that just several chords from another piece of music can result in a serious dispute over copyright violation.

It should be noted that the Law on Copyright and Related Rights of the Republic of Lithuania points that copyright applies to original works of literature, science, and art, which are a product of creative activity expressed into an objective form, including pieces of music with or without text. It means that, apart from other property-related rights, the person who created a piece of music, as the author of the piece, has the right to impose a ban on reproducing that piece in any form or manner and on using it for advertising purposes without their previous consent. Said law also stipulates that without the author’s previous consent, a piece of work, piece of music included, may be used for non-commercial purposes only. Therefore, considering the legal regulation in question, we can assume that using a fragment or several chords from a piece of music in advertising without the author’s previous consent is not permissible as the piece of music or a fragment thereof is being used for commercial purposes, which is to advertise certain goods or services.

However, one should remember that property-related copyright for pieces of work are not continuous in nature and only remain in effect throughout the author’s lifetime and for 70 years after their death. Therefore, no permit is required to use a piece of music that no longer enjoys copyright protection. However, even then one should not forget that personal non-property related copyright enjoys time-indefinite protection, which means that the author’s offspring can file a lawsuit over any infringement of non-property related copyright, such as the right to demand that the author’s name be specified when the piece of work is used in any manner, even after the above period has expired.

Although using pieces of music or their fragments in commercial messages makes them more memorable or unique, before choosing the piece of work to be used in advertising, one should first of all procure the author’s consent to use the particular piece of music or its fragment or melody in the advertisement. Only then can infringement of musical copyright and time-consuming litigation and possible losses in the form of indemnifying the authors for the illegal use of their work and paying other judicial expenses can be avoided.

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