FreeCreditReport.com is running at least six commercials featuring a down-on-their-luck rock band singing in various settings bemoaning the fact that their credit is bad. The actors are obviously musically talented, the drummer actually knows how to play drums, you can tell by looking at him. I found out that the singer is a French Canadian actor/musician named Eric Violette, (it’s not actually his voice we hear though, he’s lip-syncing).
I think these are very strong ads. They feature the time-tested, but somehow out-of-favor Commercial Jingle. A jingle is a song written expressly for a commercial. The music and words of a jingle are directly targeted to sell the product. When I was growing up in the ’60s and ’70s, jingles were the way most products were marketed on television. Most people of my generation can still recite or hum the jingles from that time.
Jingles gradually lost favor with advertisers and were replaced by what we all now hear everyday on TV - the licensed pop song put in service of a product. I’ve written before about why I don’t like this method of advertising. I call it “lifestyle” advertising, where the marketer tries to create an ad that will connect with to the viewer’s sense of identity therefore connecting the product too. Using a pop song is the fastest/easiest way to do this. If you can connect your brand with a song by Wilco, for instance, that’s a valuable cultural connection to make for your product. Your product can now live in the same cultural space that the songs of Wilco inhabit appealing to fans of that music and others that want a sense of the contemporary.
In actuality, I do not think this type of ad is very effective because when the spot gets placed into the ad mix that viewers see on a typical TV day, the lifestyle that the ad is portraying gets merged with all the other lifestyles from all the other lifestyle ads and the spots’ message gets merged as well into this jumble of lifestyle imagery and pop hits. The products, however, don’t get defined and their identities and marketing messages get muddled. Viewers recognize the pop tunes but the connections to the products are lost. Even with repetition, I believe these ads are a weak way to sell the product.
Jingles on the other hand are written directly for the product. A good jingle campaign, like the FreeCreditCard.com ads, will brand the company name right into the song. A successful ad will, over time, have viewers singing along with the jingle, either subconsiously or even overtly.
Lately I’ve heard a few fresh jingle campaigns.Optimum’s Reggaeton Jingle and also AAMCO’s I Got A Guy campaign use jingles. I am willing to bet that these ad campaigns were very succcesful as well.
I was at a cocktail party last New Year’s and I was talking to a young advertising executive and I asked him why jingles lost favor. His response was interesting. He said that more often than not, it is the client, not the ad agency, that is pushing for the high-priced licensed song. He explained it as the client getting bragging rights for the company. They are able to boast to the industry and their competition that they have gone out and licensed a multi-million dollar song for their latest campaign. To me, this is to lose site of the goal of the campaign, which is to sell, no?
This fine article from Forbes.com describes the current cloud surrounding interpretations of legal doctrine of Fair Use. The Fair Use doctrine is a part of US Copyright law that describes the conditions that have to be in place when using copyrighted material without permission from the creators.
Digitization and the Internet have blown the issue of what is and what is not “Fair Use” up beyond anyone’s imagination. When the concept was originally set as part of copyright law, Fair Use was to
facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
allow the reproduction of a work in legislative or judicial proceedings or reports;
to allow the incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
The Forbes.com article, written by Dan Fisher and Dirk Smillie makes these important points…
The real problem? Copyright laws never anticipated a time when people would be able to broadcast essentially private content all over the world, including scraps of copyrighted material.
Yet for all its importance, [Fair Use] remains a tricky concept courts determine on an agonizing case-by-case basis–making it difficult to determine whether the Next Big Thing on the Web is providing a valuable public service or violating copyright law on a wholesale basis. Judges must consider the nature of the work that has been copied, how much of it has been copied, and whether the copying hurt the ability of the content owner to make money off of it.
Today’s tug-of-war is mainly between Internet content providers, who use the doctrine of Fair Use as the rational behind posting copyrighted material without permission and content creators who believe that some content web sites are infringing on their copyrights and thus their right to earn money from their creations.
In the end, it’s about money. You have web content providers using Fair Use to enhance their business model on one hand and on the other, you have the content creators who feel that today Fair Use is being used to take money away from them.
Interesting article about the true costs of “free” on the internet… Mega-sites like YouTube and Facebook face huge operating costs and they are not recouping those costs using the advertising model. Though these businesses are immensely popular, they are not generating profits.
But the cost of bandwidth, content licensing, ad-revenue shares, hardware storage, sales and marketing and other expenses will total about $711 million, putting YouTube squarely in the red, the Credit Suisse report estimated.
Walking through the giant Virgin Mega-store on 14th St and Broadway in Manhattan today, I couldn’t help but feel sad about the rapid demise of the record industry. Unlike Walmart, which sells music essentially as a loss-leader and stocks only a very limited “hot” list, the Virgin Mega-stores, much like now-defunct Tower Records before them, stocked deep catalog with thousands of titles available in the store..
But now Virgin is closing this storeas well as their flagship store in Times Square. Everything is on sale at 20% off yet I couldn’t buy anything. I don’t know if I just couldn’t get interested in music in the climate of the store or if I just became distracted. For me a trip to the record store was an experience akin to how some people experience going to church. I feel bad for music-loving kids that won’t know the experience of browsing a record store.
There is a lot of debate about what happened to the music industry. It seems pretty clear to me that file-sharing, which essentially devalued the recording into a “free” giveaway, killed the industry.
I know some would say good riddance - that labels are now justly paying for their gouging of consumers with over-priced CDs. Though I think there is some truth in this, I think the reaction, file-sharing on p2p networks, which essentially allows one to steal the product, is just as bad.
When I read posts by folks who favor or partake in file-sharing, their language often has a revolutionary tone - ”down with the oppressive corporations” being the main rallying cry. It’s a convenient rationalization that covers the truth of what file-sharing really is.
Chris Purifoy of restoringmusic.com has posted a great article titled Defining the Music Industry Crisisthat seeks to outline the problems facing the music industry and suggests some possible paths to restoring an equillibrium between the consumer’s rightful need for fair pricing and artists/labels need to work in a viable, healthy and yes, profit-making industry. Music will be better for it.
The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”
The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group. Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.
Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way.
Warner Music Group, no doubt, feels the same way about the performance. However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web. The use of the video by Google/YouTube is therefore not fair use.
Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence. The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content. That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.
From the NY Times article…
Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”
UniqueTracks is happy to announce the release of 7 new royalty free music titles. We’ve also added every song from each new album to our online library. Each of the 75 new songs can be immediately licensed and downloaded in either MP3 or WAV format. CD albums can also be downloaded in MP3 or WAV format or the album can be shipped as an audio CD or together with digital WAV files.
Short descriptions of each new release are provided below.
Seven New Contemporary Albums from UniqueTracks
Street Culture Hip Hop Soundscapes
Dark, explosive geared toward action adventure, sports, youth projects
Sacred Spaces World Music Grooves mixed with Techno Atmospheres. Includes 3 great vocal remixes.
Speed Demons, V2 Second Volume of high-octane hard rock and metal soundtracks.
In Harmony Positive and Uplifting soundtracks will put a smile on the face of your target audience.
Orchestral Fantasy 2 Volume 2 of this popular Hollywood-style soundtrack series. This volume concentrates on the fantasy film genre.
Orchestral Fantasy 3 Volume 3 is geared towards the Action Adventure and Action Hero film genres. Music is orchestral in the Hollywood soundtrack style.
An Inner Place Presents various angles on feelings of relaxation and pleasure using easy-listening grooves, laid-back jazzy rhythms and new age texures.
About UniqueTracks Inc. UniqueTracks licenses royalty free music and sound effects to media producers who in turn, integrate the music and effects into their DVDs, videos, podcasts, radio and TV advertising, Flash and Powerpoint presentations and music-on-hold programming.
UniqueTracks is now distributing the Blastwave FX line of SFX libraries on hard drive. These multi-gigabyte libraries are the ultimate creative palette for media professionals in post, broadcast, film, commercial television, video games, interactive and beyond.
There are four Hard Drive products:
SONOPEDIA - The Encyclopedia of SFX
With 20,000 royalty-free HD sound effects ranging from Alligators to Zippers, SONOPEDIA is the first all-purpose professional sound effects library for high definition media production.
.wavFX- SFX Production Suite
Think of it as your go-to “Swiss Army Knife” of royalty-free HD sound! .wavFX is perfect for anyone in post, broadcast, film, television, video games, interactive and beyond. This is a Greatest Hits type of compilation package that takes the premium elements from Blastwave’s main SFX releases.
TITLEWAV - The massive all-in-one SFX library
Introducing the most massive collection of royalty-free HD production elements ever assembled under one title - TITLEWAV. This enormous collection includes categories like Beats, Hits, Whooshes, Logos, Special Effects, Trailers, Distortions, Drones, Voice Overs and much more.
THE BLASTDRIVE - The Mega SFX Library
It’s the whole shebang! The Blastdrive contains every sound effect from Blastwave’s extension catalog of production elements. The Blastdrive combines Sonopedia and Titlewav to form a momumental sound effects library.
On June 2nd, the judge in the copyright infringement case Yoko Ono brought against the creators of the film “Expelled” for their use of John Lennon’s song Imagine has ruled in favor of the filmmakers based on a the “fair use” doctrine.
U.S. District Judge Sidney Stein rule that “the doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”.
You can read the judges entire decision here. Those interested in the fair use doctrine should take the time to read the judges opinion because he very thoughtfully describes and then rules on each of the criteria that make up fair use.
The Purpose and Character of the Use
The Nature of the Copyrighted Work
The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The judge’s decision seemed mainly to rest on a subsection of “The Purpose and Character of the Use”, namely Transformative Use. Here is the ruling.
ii. Transformative Use
A work is transformative if it does not “merely supersede[] the objects of the original
creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching . . ., scholarship, or research.”
Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views.
Conclusion Regarding Fair Use
The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.”
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Ono’s position had been that she had the right to control use of the song by reviewing and choosing licenses. She also had the right to reject uses of the song. She brought the suit because she believe the filmmakers had “looted her of the ability to do so”.
Yoko Ono’s attempt to get an injunction against the film “Expelled: No Intelligence Allowed.” will shine a much needed light on current interpretations of the “fair use” provision of copyright law. Fair use is easily the haziest and least understood aspect of US copyright law.
Yoko Ono (and EMI and Capital Records) is seeking to have about 15 seconds of John Lennon’s recording of Imagine removed from the film. The injunction doesn’t ask for the film to be removed from theaters, it is asking for Lennon’s music to be removed from the film.
Ono sued in state and federal court, accusing the movie’s producers of infringing on the song’s copyright by using parts without her permission.
The movie, which opened on U.S. screens in April and is set for release in Canada on June 6 and on DVD in October, presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone.
The filmmakers acknowledge they did not ask Ono for permission to use 15 to 20 seconds of the song. But they argue they are protected by the ”fair use” doctrine, which permits small parts of a copyrighted work to be used without an author’s permission under certain circumstances.
At a hearing in U.S. District Court in Manhattan this week, the filmmakers’ lawyer, Anthony T. Falzone, said that if the judge granted Ono’s request for an injunction against the film, it would ”muzzle” the filmmakers’ free-speech rights.
Falzone said the segment of the song in the film — ”nothing to kill or die for, and no religion too” — was central to the movie because ”it represents the most popular and persuasive embodiment of this viewpoint that the world is better off without religion.”
The film, he said, is ”asking if John Lennon was right and it’s concluding he was wrong.”
[Sidenote] Actually I don’t think John Lennon was saying in Imagine that the world would be better off without religion, I think he was saying that people get tied to their own particular beliefs and by doing so a lot of trouble is created in the world. Imagine is about breaking out of boundaries that are created by oneself.[end Sidenote]
The filmmakers’ attorney, Anthony Falzone is the executive director of the Fair Use Project and a lecturer in law at Stanford University. He believes very strongly that copyright law, as it stands now, is in major need of reform. You can read his brief in this case here.
I notice that Mr. Falzone is associated with the Center for Internet and Society at Standford Law School. This is not surprising. A large faction of those that work and think about the Internet (Wired, Fast Company) would like to broaden current interpretations of copyright law and especially fair use.
Getting to a contemporary interpretation of fair use is incredibly important because of the use or misuse of copyrighted work on the Internet. Part of YouTube’s main defense against Viacom will be arguing fair use (amongst other things like DMCA).
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I’ve been writing about music clearance but the act of getting the legal permissions to use copyrighted content in your production applies not just to musical works but to art and literary works as well. Not taking the time to get the appropriate licensing can land you in legal trouble as ESPN has just found out.
Last year ESPN broadcast “The Bronx Is Burning”, a popular TV series created by their in-house production company ESPN Original Entertainment. The series portrayed the background events leading to the 1977 New York Yankees dramatic World Series run.
Included in the second episode, “Team In Turmoil“, was a full screen shot of Norman Rockwell’s painting “Bottom of the Sixth“. The painting depicts three umpires looking skyward as raindrops begin to fall. It is a classic Rockwell capturing a unique and wonderful baseball moment. The original painting hangs in the Baseball Hall of Fame in Cooperstown.
On May 3rd, the Associated Press reported that ESPN is being sued by Curtis Publishing Company, the owner of the Rockwell painting, for using the image without obtaining a license.
Curtis sent an e-mail to ESPN lawyers notifying them that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said.
The lawsuit seeks to bar ESPN from rebroadcasting the series until it withdraws use of the painting. In other words, until it removes any footage of the painting from the episode.
Compounding the problem for ESPN is that The Bronx Is Burning has been sold on DVD and VHS format. Recalling the unsold copies and destroying them and having to issue a new movie with the infringement removed will prove costly for the cable network.
UniqueTracks has added four brand new sound effects sets from Blastwave FX to our growing collection of royalty free Sound Effects products.
Podcaster
Podcaster has everything you need to produce a professional podcast. Add music or just a beat loop to your intro and immediately give a focus to the theme of your show. With over 500 sound effects (Animals, Cartoon Effects, Crashes, Human Effects, Vehicles, Weapons and more), this set will let you underscore the humerous, contentious and exciting moments of your podcast.
WebTones
If you design and create professional Flash productions or web sites, then you will want to add this large assortment of multimedia sounds to your production toolbox. The WebTones collection features 1000 unique buttons, clicks, rollovers, pings, beeps, hits and production elements that can easily be plugged into your next production. This collection will provide you with the tools you need to add sonic life to your virtual creations.
Spoilers - Movie Trailer Sound Beds
If you’ve ever wondered where to find those great sonic effects that Hollywood post production editors lay into movies, trailers and commercials, look no further. This incredible set by Blastwave FX will amp-up your production with the latest, most modern audio effects available on the royalty free market. This collection, on 4 DVDs, has 300 stereo movie trailers and compositions with matching 5.1 surround files, plus 200 high impact stereo imaging elements.
Drones
Using long, sustained, audio drone effects is one of the most effective ways of using sound to build drama and interest in a media production. The material contained in the 4 DVD set Drones by Blastwave FX is specially made to give your production a professional, Hollywood-caliber sheen. In total, this collection has over 10 hours of unique sound effects in stereo and 5.1 Surround Sound.
Blastwave FX develops next-generation HD sound effects libraries for professional audio production. Their design and engineering team constantly pushes the sound envelope with innovative product formats, rich metadata, multi-channel libraries and the highest resolution audio that technology allows.
The latest issue of UniqueTracks’ newsletter features an article I wrote that defines Music Clearance - the act of getting the permissions necessary to use music in your production. It also recommends some companies that will handle your music clearance problems when attempting to license a famous or even an obscure recording.
All Clear?
Music Clearance and Music Licensing
Every few weeks or so I’ll get a phone call with an inquiry that goes something like this…
I’d like to use Elvis Presley’s recording of ‘Don’t Be Cruel’ in my film. Can you help me do that?
Regretfully, beyond recommending some other companies to investigate, I am not much help in this regard. Though licensing music is our core business, UniqueTracks only licenses recordings that we have created in-house or that we control the publishing rights to.
What these folks are looking for is a firm that will do “music clearance” work for them. Yes, there are companies you can turn to when you are looking to obtain music licensing rights but have no idea where to turn. These companies will help you acquire the rights to use famous songs but they are even better at finding the rights for obscure songs. Music clearance companies are experts at finding the needle-in-the-haystack information that will eventually track down the song you’re interested in. They will then act as your advocate with the publisher and record company to try and get you the best pricing available.
