In my previous post, we looked at public domain (“PD”) issues regarding songs/compositions which are often relevant for brands.

In this post we’ll look at the position on sound recordings which is less common in advertising but could still be useful.

Sound Recordings

Similar to Songs/Compositions, the rules governing sound recordings vary per market. They are extremely complex in the United States and hence we would always recommend that clients avoid relying on PD status for US focused campaigns.

In the UK and Europe, broadly speaking, life of copyright in a sound recording lasts for seventy (70) years from the end of the year in the which it was first commercially released. In the UK this was extended from the shorter fifty (50) year protection under EU Directive 2011/77/EU.

What does this mean for brands?

There may be some situations in which brands could use a public domain sound recording in a marketing campaign without the need to pay a licence fee (also called master licence fee in this instance). The following conditions would need to apply:

• Due diligence had proven the sound recording was first commercially released for than seventy (70) years ago.

• The brand has secured and intends to use an original shellac or vinyl record of at least seventy (70) years in age. To clarify, a more recently remastered CD or download would not qualify as the record label who released it may claim copyright still exists in their master.

• Any audio post production to remove hiss, crackle and other noises audible on the shellac or vinyl record is commissioned by the brand from vendors who do not seek to claim such work creates a new master recording in which the vendor owns any copyright. This should be a condition of the engagement of services.

• The brand’s campaign is geo-locked to the UK/Europe and will not be visible in the United States. This is because the period of copyright protection can be significantly longer in the US than Europe and the related legislation is extremely complicated.  

• Even if the sound recording is proven to have public domain status and all the above conditions are met, the underlying song/composition may still be in copyright and would need to be properly licensed from the relevant owner(s) who may include music publishers and/or the estate(s) of the writer(s).

This is a complex area in which it’s easy for brands to get wrong-footed, potentially leading to legal claims. If you have any questions, please get in touch on richard@resilientmusic.com