Having worked in advertising-related sync licensing for twenty years, I’ve heard the above phrase many times from both brands and their agencies. If only it were so simple!
In music licensing, the rules around public domain (“PD”), aka “out of copyright”, are complex and vary per market.
In my earlier post “Demystifying Sync Licensing”, I explained the difference between songs/compositions and sound recordings.
In this first of two posts on public domain, we’ll consider the how PD status relates to songs/compositions. We’ll deal with sound recordings in the next post.
Broadly speaking within the UK and Europe, these rules apply:
- Falling Out of Copyright
Songs (including lyrics) and musical compositions remain in copyright until seventy (70) years from the end of the year in which the creator dies (“70 year rule”). The creator may be a songwriter, composer or lyricist. Within opera, lyricists are called librettists.
Where there are multiple creators of the song or musical composition, the entire work remains in copyright until (70) years from the end of the year in which the last surviving creator dies.
Let’s consider John Lennon and Sir Paul McCartney.
John Lennon died in 1980, so works solely composed by or credited to him remain in copyright until the end of 2050. This would apply to “Imagine”.
Sir Paul McCartney is thankfully still alive and active. Songs jointly composed by or credited to John Lennon and Sir Paul remain in copyright until seventy (70) years from the end of the year in which Sir Paul passes away in the future. This would apply to many hits within the Beatles song catalogue such as “Yesterday” and “Strawberry Fields”.
Within classical music, it’s reasonably safe to assume that any compositions dating from the late C19th or before will be PD, though one should always carry out careful due diligence to be certain.
Section 1 above assumes that we know the identity of the creator and the date they died. However, there are many traditional or folk songs where the creator isn’t known. These are often credited as “Trad” and designated as public domain. “House Of The Rising Sun” is one such example albeit has been arranged and covered by many artists such as The Animals.
What does this mean for brands?
There may be some situations in which brands could use a public domain song/composition in a marketing campaign without the need to pay a licence fee (also called publishing licence fee in this instance). The following conditions would need to apply:
- Due diligence had proven the last surviving creator died more than seventy years ago.
- The song/composition is registered with a performing right organisation (“PRO”), such as PRS in the UK, which has designated the work as public domain.
- The brand intends to commission a new wholly original arrangement of the public domain song/composition from a music production vendor who will not seek to register the new arrangement as a new copyright. This should be a condition of the engagement of services.
- The brand does not use or copy an existing arrangement of the public domain song/composition which may have already been registered as a new copyright by the arranger or their publisher.
- 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.
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 firstname.lastname@example.org.