What's the legality of a student using a musical track in a spec ad for a big brand?

November 28, 2011 5:13 PM

What's the legality of a student using a musical track in a spec ad for a big brand?

So I'm a newly graduated advertising copywriter who's setting himself the challenge of making an ad for a major brand every day for a week. I want to use a variety of awesome musical tracks as backing, which I don't have explicit permission for. What's the legal standpoint of doing so? Since I'm not being employed by the brand, and I'm not making any money off it, (Although I will be using them as part of my portfolio) do I need to get permission from the copyright owner? Does it constitute "fan made"? In this situation, what constitutes "fair use"?

posted by rudhraigh to media & arts (9 answers total)

Well the first question I would ask is what do you plan to do with the finished product? Will you be posting the tracks publicly online or just handing them out as part of your portfolio to prospective clients and employers?
posted by zachlipton at 5:24 PM on November 28, 2011

They'll be publicly available online on my website in a portfolio section. Ideally I'd like them and the project to circulate through the blogosphere and get me some publicity.
posted by rudhraigh at 5:50 PM on November 28, 2011

You want to contact ASCAP about this. Usually there's a standard non-commercial student license which is free with certain restrictions. But now with youtube and digital media and online portfolio's, things might be different than when I was a film student.

Do you know about Moby?
posted by cazoo at 5:53 PM on November 28, 2011

If you're planning on using YouTube for the video hosting, and embedding them on your site, you should know that YouTube will flag any copyrighted music and report it to the copyright holder. Probably easier to just use royalty-free or creative-commons music. Think of it as an extra creative challenge not to lean on the awesomeness of widely recognized work by other people.
posted by judith at 6:28 PM on November 28, 2011 [2 favorites]

I'm not a lawyer, this is not legal advice. The fair use tests are not easy to figure out, and most importantly involve subjective counterbalancing factors. For instance, the use of an entire copyrighted piece argues strongly against fair use, while an educational purpose argues strongly for it. Another factor is whether the commercial potential of the work is hurt by the use. Given the six-figure payouts for use of songs in commercials, your non-educational use, and the use of a substantial portion (30 seconds out of a 3 minute song), I'd say you'd be infringing.

Even if you're not infringing (see this absurd case) you can still get sued or, best case, your ISP can be served with a DMCA notice, which they will waste no time in honoring. YouTube et al. will behave in the same way. When you say "on my website," I assume you don't actually have a web server, but rather a shared hosting agreement.

Even a true non-profit documentary has to pay to license music, so I really think you'll have trouble doing it for free. You might skate under the radar if your site doesn't advertise the use of the music, and you don't use a video player hosted by a third party, not that I would advise anyone except a penniless student to take that route. The music industry is greedy, vicious, and has the law firmly on its side, so you're really better off either playing by their rules or else going around them entirely.
posted by wnissen at 7:03 PM on November 28, 2011

ASCAP is who you want to contact if the artist is licensed by ASCAP. They could be licensed by BMI, or someone else, these days they may control all of that themselves even.

Long story short, it probably is not legal, especially if the stuff is going to be circulating (IANAL). And it really isn't worth the risk; if your project really took off, one of the artists is more likely to get up in arms, and you could garner some bad publicity for yourself.

I guess I would try hooking up with a fellow student - post something in the music building of your alma mater or throw something up on craigslist. Lots of people starting out also want to build their composition portfolio. All else fails, you may end up paying someone to come up with music for you if you need to - a lot of folks will do it for extremely cheap. Many commercial composers will also work with you in a 'hey, I need something that sounds like . Come up with something?" style.
posted by Lutoslawski at 7:05 PM on November 28, 2011

This isn't Fair Use. If you could make your site pass-word protected, you can probably get away with the use, but snagging someone else's work to help you get a job isn't actually a good idea.
And if you're a copywriter, why the music? I could see it if you wanted to produce or direct ad spots, but background tunes to accompany your spec work? Why?
posted by Ideefixe at 7:12 PM on November 28, 2011

Don't.

Even if it is fair use (which it isn't) the record labels have a great many lawyers on staff just to intimidate people into doing things they don't like. They don't like you using their music for your self promotion, which is exactly what you outlined.

The best thing that will happen is you'll post them to YouTube, record companies will file a DMCA takedown notice and in an instant your entire portfolio will be offline. The worst that will happen is they'll take you to court for damages.

See if you can partner with a musician who is in the same boat you are. It will build portfolio and exposure for both of you.
posted by Ookseer at 11:43 PM on November 28, 2011

Maybe not a good idea from a selling-your-work standpoint. How much are your ads going to depend on the awesomeness of the specific pieces of music?
posted by Adventurer at 11:58 AM on November 29, 2011 [1 favorite]