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(As long as it was composed before 1923.)
Cadillac used Led Zep's "Rock and Roll." Mercedes couldn't resist
Janis Joplin's "Mercedes Benz" despite the lyrics. Quaker has
"Heart and Soul," Heinz ketchup went with "Anticipation" and
Microsoft launched Windows 95 with the Stones' "Start Me Up."
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For this TV spot for a weight loss center, we used hit
music--from 1921. Because it was a classic, it was still
contemporary--and free. (Click image to view commercial.) |
Chart-topping songs are extremely effective at getting awareness and
recall and establishing a personality for the message – and,
if chosen well, for the brand being advertised.
But what if you can't write a really big check for the right to use
a chart-topper? No problem. Use a golden oldie. A real oldie.
Something from before 1923.
Public domain music can work almost as effectively as current #1
tunes, and it's free. Anyone can use it.
In 1998 the
Sonny Bono Copyright Term Extension Act stretched
copyright protection to the life of the author plus 70 years, or to
the earlier of 120 years after the date of creation or 95 years
after publication for works with corporate authorship. (That is,
works whose original copyright was owned by a corporation because
they were created as "works for hire" by staff or contract
creators.)
The law applies to any work which was copyright-protected in 1998.
If the copyright had expired in 1997, the work remained in the
public domain. Since all copyrighted materials got a 20-year
extension, no new songs (or other copyrighted material) will come
into public domain until 2019.
We recently used a public domain song, "There'll Be Some Changes
Made," in a TV spot and a pair of radio commercials for a
weight-loss center. This piece illustrates some key points in using
public domain music:
§
The song was appropriate to the advertiser's message. Changes are
exactly what the prospective patients/clients of a weight-loss
center want.
§
The song remains contemporary. Although originally composed in 1921,
the song became a jazz classic, and has been recorded continuously
from its original composition right up to the present. (91
versions are available on
Rhapsody.) It's familiar to the target
audience.
§
Although the song's original lyrics were changed slightly, the
change occurred in 1922, so they were still in the public domain.
Many songs are changed slightly over time, and new versions may
still be protected, even if the original is PD. So it's important to
be careful to use the pre-1923 version if multiple versions exist.
§
Although there are 91 readily-available interpretations of
"There'll Be Some Changes Made," we re-recorded the music. That's
because there are two sets of rights involved in using music:
copyright and performance rights.
If a song is in the public domain, you can use the composition for
any purpose for free. Even if the piece is copyrighted, gaining the
rights to use it in a commercial is a straightforward process: You
contact the holder of the copyright and negotiate a fee. (In most
cases you might want to be seated when you hear the price.)
But composition rights (or the fact that a piece is in the public
domain) don't give you the right to use a performer's version of
the song. That's a separate set of rights, and negotiating them is
so complicated it's usually beyond the patience, schedules and
budgets of advertisers and agencies. Essentially, anyone who
participated in the original performance must sign off on the
re-use. That means every studio musician who played in the session.
It's often difficult to determine exactly who performed on a track,
much less negotiate with each artist, for the rights to use his or her
performance.
After settling with the musicians (if they can be identified and
found) the agency or advertiser has to negotiate with the record
company as well.
All that complication and expense means that it's virtually
impossible to get performance rights. (Cadillac got Led
Zeppelin because the members of the group were the only performers
on "Rock and Roll." Tracking them down and negotiating with them as
a unit was no problem.
In practical terms, whether the music is PD or you've bought the
rights, you have to re-record. And you can't mimic an established
performance. A performer's recognizable style is protected. A few
years back Vanna White successfully sued an advertiser who used a
blond-wigged robot to gesture to a game board. She claimed – and the
jury and judge concurred – that she had created the persona of a
blond letter-flipper, and that her ownership rights had been
infringed.
It's important to check and verify the original publication date of
public domain material you want to use. "Anchors Aweigh" is public
domain. "Off We Go Into The Wild, Blue Yonder" is not. "Jingle
Bells" is public domain, but "White Christmas" isn't.
"Pretty Baby?" No problem. "Pretty Woman?" No way. Feel free to
use "America the Beautiful," but not "God Bless America." "Auld Lang
Syne" is PD, but "Happy Birthday" isn't. Or is it?
In 1893 kindergarten teacher Mildred Smith wrote the melody of "Good
Morning To All" and her sister Patty penned the lyrics:
Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.
The song was published in Song Stories for Kindergarten that
same year, and by all accounts it was a smash hit.
In 1924 Robert Coleman published a songbook with the words of
today's "Happy Birthday" set to the tune of "Good Morning To All."
The first note was split into two to accommodate the two-syllables
of "happy" in place of the monosyllabic "good."
In 1934 a third Hill sister, Jessica, sued and gained her sister
Patty the rights to "Happy Birthday" based on the music's virtually
identical resemblance to "Good Morning To All." (Mildred had died in
1916.)
In 1935 Jessica and Patty had "Happy Birthday" published and
copyrighted by Clayton F. Summy Company and that company and various
corporate successors right up to the present agent, Warner Chappell have licensed it
ever since.
Although Warner Chappell has a pretty loud bark when it comes to
enforcing their "Happy Birthday" copyright, their bite is notably
reticent. They are reportedly pretty free with cease-and-desist
letters, but don't ever seem to go to court.
That may be because The Golden Book of Favorite Songs,
published in 1915, refers to "Happy Birthday" as an alternate title
for "Good Morning To All." Although the lyrics were not published in
that instance, they may well exist. If they do, the copyright to
"Happy Birthday" has long since expired.
In fact, Katzmarek Publishing, a public-domain sheet music firm,
published "Happy Birthday" without apparent challenge from Warner
Chappell. Katzmarek claims that the lyrics were published without
copyright protection, and were not written by the copyright holders,
and so are in the public domain.
So, urban myth notwithstanding, "Happy Birthday" may, in fact, be
public domain music. Of course it's easier just to use the music of
"Good Morning To All" without lyrics and avoid the time-consuming
confrontations with Warner Chappell's lawyers as we did when we
wanted to use the music for a commercial and found that Warner
Chappell lives up to its difficult-to-deal-with reputation.
Want to learn more about using public domain
music? Contact us and we'll share some
experiences. (Note: Public domain can be tricky.
If you're not comfortable with all the issues involved, we suggest
consulting with an intellectual property lawyer.)
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