ACCOUNT EXECUTIVE: Here’s the new radio commercial copy for Ed’s Submarine Sandwich Shop. By the way, for music they want us to use The Beatles’ “Yellow Submarine.”

 

PRODUCER: We can’t do that. That would violate federal and international copyright law.

 

ACCOUNT EXECUTIVE: Excuse me?

 

PRODUCER: We’re talking about music in commercials, correct? To use in radio production for radio advertising?

 

ACCOUNT EXECUTIVE: Correct.

 

PRODUCER: “Yellow Submarine” is a copyrighted song, and the Beatles’ recording of it is a copyrighted performance.

 

MANAGER: Yes, but we pay BMI and ASCAP fees, so it’s okay for us to use this song.

 

PRODUCER: No, the BMI and ASCAP fees are for entertainment broadcast purposes only. Paying the BMI and ASCAP fees give us the right to play their songs as part of our programming. But that does not give us the right to use the songs in commercials.

 

MANAGER: That’s ridiculous! Unfair!

 

PRODUCER: Really? If you turn on the TV and see a national ad campaign that uses a hit song, do you assume the advertiser paid a substantial fee for the rights to use that song?

 

MANAGER: Yes, I guess.

 

PRODUCER: And do you think it’s fair that the advertiser couldn’t use that song in the commercial without paying a lot of money to the copyright holder?

 

MANAGER: Sure, that’s fair. But we’re just talking about a local sandwich shop, not a national campaign.

 

PRODUCER: Right. But….If that same song is being used by local sandwich shops all over the country — none of whom is paying a licensing fee — how likely will the copyright holder be able to charge a substantial fee to that national advertiser? When a local advertiser — any advertiser— illegally appropriates a copyrighted work, it diminishes the market value of the copyrighted asset.

 

MANAGER: Ah, but you are forgetting one thing: The Seven Second Rule.

 

ACCOUNT EXECUTIVE: What’s the Seven Second Rule?

 

MANAGER: It’s okay to use copyrighted material as long as you don’t use more than seven seconds of it.

 

PRODUCER: There is no such thing as the Seven Second Rule. Never has been.

 

MANAGER: But everyone knows about the Seven Second Rule!

 

PRODUCER: Hey, in the 18th and much of the 19th Century, everyone in America knew that if you ate the poisonous wolf peaches, you’d die a quick yet painful death.

 

ACCOUNT EXECUTIVE: What are wolf peaches?

 

PRODUCER: Today we call them tomatoes.

 

ACCOUNT EXECUTIVE: But tomatoes aren’t poisonous today.

 

PRODUCER: And they weren’t back then, either. By the way, did you know that even though the tomato is a fruit, the U.S. government calls it a “vegetable” for tax purposes?

 

MANAGER: Do we really need to know that?

 

PRODUCER: Okay, no. But my point is: Even if “everyone” knows about the “Seven Second Rule,” they’re wrong. Unauthorized use of a copyrighted work becomes illegal when it exceeds the vague concept of “fair use.” For commercial purposes, it is not “fair use” if “the heart” of the copyrighted work is used.

 

In fact, in the late 1940s a lawsuit was filed over a single second of audio: Cartoon voice legend Mel Blanc had provided the voice of “Woody Woodpecker” in three cartoons. But then Blanc signed an exclusive contract with Warner Brothers, and the producers had to find a new voice for Woody.

 

But they continued to use the 5-note “laugh” that Blanc had created for them. And that laugh was used in a hit novelty record, “The Woody Woodpecker Song.”

 

Blanc sued…and lost. But not due to “the Seven Second Rule.He lost the lawsuit because he had not copyrighted the laugh in the first place.

 

By the way, to use copyrighted, recorded music in a commercial, you must obtain two licenses: one from whoever owns the copyright to the song (the publishing rights), the other from whoever owns the copyright to the recording. That’s why on some national campaigns you’ll hear a classic oldie that isn’t sung by whoever had the hit. In such a case, the advertiser got permission to use the song but not the performance.

 

MANAGER: So the bottom line is there are laws we are required to follow when using copyrighted music in a TV or radio commercial?

 

PRODUCER: I’m afraid so.

 

MANAGER: That’s so unfair…!

 

PRODUCER: (sigh)