Lose yourself in the commercial

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Commercials are a great way to connect with consumers and shape a brand’s image. However, the recent Eminem decision highlights the importance of understanding where third party music comes from to avoid “losing yourself” in an expensive copyright claim.

In Australasia, copyright arises automatically in an original work. Copyright protects the expression of an idea, and in the music world separate copyright exists in the song lyrics, the sound recording, the musical score and the performance of a work.

Deciding if one piece of music too closely resembles another is notoriously difficult. However, the New Zealand Eminem decision highlights the risk of using “sound-alike” tracks. These kinds of tracks are popular as they call to mind another well known (and often more difficult or expensive to obtain) musical work. However, the risks are significant.

When negotiating a licence of a musical work, it is important to deal with the copyright owner, or someone authorised to license on behalf of the owner. Obtaining a warranty of non-infringement and a suitable indemnity is key, especially when using a sound-alike track. However, contractual protection will provide limited comfort to a business dragged into an infringement claim. Joining the licensor or music library to the claim will not remove the pain.

The reasons for choosing a specific track can also be important. Using a sound-alike track to avoid paying a higher licence fee for the original, especially if (like Eminem) the owner would not have licensed it, can invite additional damages. If in doubt, seek legal advice from IP experts – don’t rely on the assurances of a music library. And maybe consider (or recommend) IP insurance.

Some top tips are:

  • Make sure you’re dealing with the copyright owner or an authorised licensor
  • Take extra precautions if using a sound-alike work
  • Check the warranties and indemnities carefully
  • Make sure the desired use of the work is covered by the scope of the licence
  • Involve an IP lawyer early to save money later

Jenni Rutter, partner, and Lauren Butchers, solicitor, are part of Kensington Swan’s national IP team.

 

Related stories:
Not only has National lost to Labour, it has also lost to Eminem
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