Library

The sound of music

08 May 2008

When you design a promotion or advertisement using a song then you must be sure to have permission from the copyright owner to avoid copyright infringement. That sounds simple enough - but designers are still getting it wrong on occasion.

A commonly held belief is that you will not infringe copyright it you only use 10% of another person’s copyright work. Unfortunately, that is not correct. The truth is this. If you reproduce a substantial part of the copyright work, and if the reproduction and the copyright work are similar, then the copyright has been infringed. What qualifies as ‘substantial’ is based on quality not quantity. Reproducing even a few bars of a song may infringe copyright.

Copyright in a song is complex.  A song contains three distinct copyright works.  First, the music qualifies for copyright as a musical work.  Second, the lyrics of a song qualify for copyright as a literary work. Third, a particular recording of the song qualifies for copyright as a sound recording.

Different parties may own the various copyright works in a song. A music publisher may own copyright in the music.  The person who wrote the lyrics may own the copyright in the literary work separately.  And a recording company may own the sound recording. You may need permission from all three copyright owners before you can use the song.

You can infringe copyright in the various parts of a song in many ways. For example, copying any part of the song, and playing the sound recording in a public place would be an infringement.

In December last year National had to recall copies of a DVD promoting John Key. National recalled the DVD because of concerns that the music on the DVD infringed copyright in the Coldplay song ‘Clocks’.

So how do you avoid infringing copyright in a song? Use a checklist to identify each individual part of the work that you are designing. For example, in a radio advertisement you may have text that a person will read or sing, and background music.

Once you identify each part then ask yourself whether each part is original. If you are unsure whether a work is original then run it past your colleagues to get their opinions. A colleague may remember a song that you have heard but can’t remember. This is important as even subconscious copying infringes copyright.

If your work is a copy or you want to use a particular sound recording then you must contact the copyright owner to get permission to use the work.

The owners of copyright works can sometimes be easy to identify as there will often be a copyright notice on the work.

Another option is to contact the Australasian Performing Rights Association (APRA). APRA monitors and licenses the use of songs for many copyright owners. APRA collects and distributes royalties for copyright owners. If APRA doesn’t license the artist or copyright work that you want to copy then APRA may be able to tell you who you can contact for a licence.

No system of checks is foolproof. However, if you keep a record of the checks made then that may prove useful if someone does allege that you have infringed copyright. It may allow you to argue that you are an innocent infringer and that you shouldn’t have to pay any damages.

Following the steps outlined about may help a client to avoiding the kind of publicity that National attracted about its DVD. The consequences of getting it wrong can ruin reputations – both yours and your client’s.

Simon Fogarty
Senior Associate, A J Park Wellington
simon.fogarty@ajpark.com
DDI +64 4 498 3435

An edited version of this article was published in Prodesign April/May 2008