Navigating the Maze of Copyright Permissions: A Guide for Brands
Brand marketers often control large production budgets. They sit at the top of a long supply chain including brand strategy consultancies, creative agencies, production companies, post production houses, crew, talent and music vendors. Understandably, brands expect to call the shots – Engaging suppliers to provide goods and services to agreed SOWs, deliverables, timings and fees. In this context, many suppliers are “guns for hire”; they perform a task, to the brand’s requirements, for a fee. Simple.
Commercially Released Music Is Different
Commercially released music, being available on streaming platforms and for purchase on vinyl and CD, is usually conceived by songwriters and recorded by artists as a creative endeavour. First and foremost, it’s made for artistic reasons rather than in response to a brand’s brief. This key distinction makes for a very different dynamic when a brand seeks to license existing commercial music tracks for a campaign.
Right of Approval
“What Part Of No (Don’t You Understand)” is a country song written by Gerald Smith and Wayne Perry, made famous by recording artist Lorrie Morgan. Whilst the lyrics obviously refer to the rejection of romantic advances, they also resonate with songwriters and artists who can choose how and where their music is used. Most songwriter publishing agreements and artist recording agreements contain contractual rights of approval for synchronisation (the use of music with moving images). This is especially true for advertising usage where songwriters and artists want absolute control over any association with brands. In this context, music creators can, and often do, refuse to grant approvals meaning their respective music publishers and record labels cannot grant synchronisation licences to brands. When this happens, “No Means No” and further lobbying by the brand or their agency can often be fruitless.
What’s The Reason?
Songwriters and recording artists may have complex reasons behind their decision to approve or deny a licence request from a brand. These can include:
- Brand category
- Third party relationships
- Commercial terms
- Career arc
Let’s briefly look at these in order:
- Some brand categories are viewed as contentious. These may include gambling, alcoholic beverages, petrochemicals, pharmaceuticals, financial services, meat and animal products. For example, an ex-alcoholic who has found sobriety will likely deny uses by alcoholic beverage brands. Vegetarians will deny meat product brands. Gambling brands receive a high proportion of denials.
- If a songwriter or artist has an existing relationship with another brand, even if they’re not a direct competitor, they may prefer, or be contractually bound, to deny uses by your brand.
- Songwriters and artists care passionately about their fanbases. Without fans, they don’t have a career. So, even if there’s a desire to grant approval to a brand and “take the money”, there will always be a concern around optics. Will the use by a brand alienate so many fans that the damage isn’t compensated by the licence fee? This dilemma speaks to the fact that artists (and to some extent songwriters) are brands in their own right and wish to avoid harming their reputation.
- In any licence request, the fee and commercial terms will play a key role in determining a Yes or No. The songwriter’s and artist’s management will be asking “Is the fee large enough?”, “Do we want this campaign visible in all these markets and for this period of time?”. “Will granting this use jeopardise other potential opportunities?”. As ever, “money talks” and sometimes increasing offer can eventually secure an approval for the brand.
- For recording artists, where they are in their career arc, really matters. Do they need money to finance a new album or to build their own studio? Are they riding high on streaming chart and awards success or is their career in the doldrums? Are they going through a divorce or reaching their senior years with no pension provision? Has their upcoming lucrative tour just been cancelled due to illness or travel restrictions? All these factors play a part.
Understanding approvals within synchronisation licensing can be difficult. If you want to learn more, get in touch with me at firstname.lastname@example.org