Re: radio commercial background music

>Does anyone know the copyright status of radio advertisements which use
>copyrighted songs as background music?
>
>I have always assumed that such uses are each licensed from the holders
>of both the composition and sound recording copyrights as one would
>expect. However, I hear enough prerecorded radio ads for small local
>businesses that use obscure but recognizable tracks as voice-over
>material that I wonder if they are all really obtaining such licenses.
>Or does an ASCAP/BMI blanket broadcasting license cover such use of
>works as background music?
>
>Would the same answer apply to TV commercials?

First, the easiest part: the owner of the sound recording copyright does not have any performance rights and therefore consent for the performance of the sound recording as such is not needed. On the other hand, of course it is an infringement of the sound recording copyright literally to copy the sound recording (i.e., by taping excerpts for inclusion in the ad) and consent to such copying is required.

The consent of the owner of copyright in the underlying composition is similarly required to record that composition (or portions of it) for inclusion in the ad. An ASCAP/BMI license (blanket or individual) relates only to the performance right of the owner of the composition and, depending upon how it is used as background, that performance could well be covered by the station's blanket license. As to whether the local businesses in fact get the necessary consent for reproduction of the works is another matter but I would be surprised if the station carried the works without checking on the necessary clearances.

Sheldon W. Halpern
Professor of Law
The Ohio State University College of Law halpern.1[_at_]osu.edu Received on Tue Feb 28 1995 - 22:14:30 GMT