The Mission: Impossible Theme's publisher has filed a lawsuit in the US against a razor manufacturer, for infringing their copyright in a TV commercial. Here we consider why advertising agencies and brands often run a higher risk of infringement claims from publishers and record labels.
It was reported in August that Famous Music, publisher of the Mission: Impossible Theme has filed a suit against the manufacturers of the Sonic Groom razor for copyright infringement. You can see and hear the two tracks in question here, in the Cases section of this site, but why do ad agencies and brands carry a higher risk in the music they commission?
The Value of Music
Brands are always searching for the perfect piece of music to match their product, and to attract the attention of potential purchasers. With TV commercials they have three separate constituents with which to make their product pitch – visuals, speech and music. There is little doubt that music adds greatly to the 'value' of the finished ad in terms of the product's "sellability". Music can't be synchronised into an ad without a "synch and master" licence, covering use of the music composition as well as the sound recording. Many artists retain the right to refuse to allow their music to be used in a brand with which they do not want to be associated. Brands and agencies have an enormous amount of choice around which music to choose, but the many millions of tracks fall into three categories:
- Commercial music (pre-existing music written originally for direct sale to consumers: anything from Adele to ZZ Top, Pavarotti to Purcell)
- Commissioned music (specially composed to order for the ad)
- Production / Library music (pre-existing music written for synchronisation with picture)
The Cost of Music
Whilst there are no standard rate cards for these categories of use, they are listed in order of most expensive first, and are priced approximately in the ratio 100:10:1 – so an Adele track might cost you £100k, you can have something written for £10k and a piece of production music might cost £1k – all, of course, depending on the size of the brand, the length of music used and the duration and geographic distribution of the campaign. So it is immediately clear that commercial music used in TV ads carries significant value, and the rights owner(s) can contest high value damages in lost licence and royalty revenues.
Often a brand will decide a piece of commercial music is perfectly suited to their needs, but when they get the quotes in from the publisher and record label, they conclude that it’s out of their budget. Then they look at commissioned and production music. Often a production music will convey the same style and feel as the commercial track, but for a fraction of the price. But sometimes the brand will want something more tailored, and will approach a composer with a brief to write something “in the style of”, and this is where the risk of infringement begins.
See You In Court
Some significant UK court cases have already considered music that has been specially composed for TV ads, where the “in the style of” brief is felt to go too close to an existing musical work. Elsewhere on the site we examine Warner v Dundas, Warner v De Wilde and Williamson v Pearson. They are linked because in each case the copyright owner of the commercial music felt that the composer of the commissioned music had infringed their copyright by using too much of the original composition. Not all of these cases share the same outcome however.
This current case has particular resonance with Warner v De Wilde in arguing that non-music elements also add to the weight of argument for infringement. With Warner it was a visual depiction of runners along a beach that was intended to evoke (along with the music) the film Chariots of Fire. In this case, the dialogue used in the ad also quotes from the film Misson: Impossible, delivered by an actor mimicking the tone and style of Bob Johnson from the 1967 TV series.
In order to win, Famous Music will need to demonstrate sufficient levels of similarity with the very distinctive music to Mission: Impossible, and will undoubtedly rely on the dialogue quotes from the series in the ad’s voiceover. The defence will have a task to argue that the similarity was coincidental and that the intention was not to reference Mission: Impossible and rely on its popularity and also the inference that it has endorsed the razor brand. In fact, they could be said to have an impossible mission of their own.
This blog will self-destruct in five seconds. Good luck, Jim.
A recent UK Advertising Association report quoted by OFCOM showing that annual spend on UK TV advertising is has remained constant at around the £21bn mark, over the past ten years. But whilst TV’s share of this has remained constant at £5bn, digital spend on advertising has risen from £3.5bn ten years ago to £10.3bn in 2016, at the expense of print media which has declined by almost the same amount from £8bn to £2bn. Good news for music, bad news for print.