Brands & Merch Business News Labels & Publishers Media The Great Escape 2015

What to do when an advert rips off your music

By | Published on Friday 15 May 2015

Better Brand Partnerships

The final session of yesterday’s ‘How To Sell Out Gracefully: Better Brand Partnerships’ strand at The Great Escape switched from looking at how bands and brands can work better together to what happens when things go wrong, in a discussion titled ‘When Brands Rip You Off’.

The issue of soundalike songs appearing in adverts, either because use of the original was refused or it was deemed to be too expensive, is one that occurs fairly regularly. Jay Barbour of Quest Management said that he’d seen “four or five” cases in recent years with just his own artists, adding that there were “a lot of incidents under the radar that get settled out of court”.

Putting into context how something like this can happen, Bella Union’s Simon Raymonde outlined an instance of one of the bands signed to his label having a soundalike song appear in an advert.

“In this case, the script to the advert had been written around a song that was yet to be released”, explained Raymonde. “The band didn’t approve the advert because they didn’t feel that it was the right way to present a brand new song that nobody had heard yet, and the visual representation was not right. The song was about not being able to look after somebody, and the script was the opposite of that. The band weren’t comfortable with that”.

He continued: “The agency said, ‘This is the only song we want. Can we talk to them, fly them over?’ In the end, we had to say that it was just a no. It was a very firm no. I didn’t hear anything for a couple of weeks until I was home one night watching TV and this ad came on and I thought ‘fuck they’ve used it’. They actually hadn’t, but it was damn near it. The melody was very similar, the lyrics were very slightly changed”.

Acting quickly, Raymonde called a musicologist to confirm that the song could be seen as a rip-off by a judge. “I told him the whole story and he said, ‘Look, I’m going to have to stop you there, I’m already representing the other side’. Which made it all the more stinking”.

“There are only a handful of musicologists in this country”, explained lawyer Tahir Basheer. “So what brands will sometimes do is approach all of them to get an opinion, which puts them all in a position of conflict of interest”.

But how do you go about fighting back? “Always go the legal route”, said Barbour, noting that “these sorts of things don’t happen in wider brand partnerships, it seems they’re always advertising related”.

“If somebody approaches you about licensing a song and you say no straight away, that protects you later down the line”, added Basheer. “If you start negotiating and then pull out, later down the line that may limit your claim. The judge may say, ‘Well this was just about money'”.

While the panel all agreed that it was important to take legal action whenever an artist believes their music has been ripped off, it can be a costly process fighting a big company in this way, particularly if you’re a small band. But coupling legalities with good PR can aid your situation.

“The bottom line is that you’ve got to assemble a team from point A”, said PR expert Mark Borkowski. “And there needs to be a committed strategy and a long term campaign focused on how you’re going to fight back. Where a brand might think they have highly involved customers who buy into them, they don’t. Not like an artist does with their fans”.

“Ultimately, depending what the brand is, nobody on the corporate side wants negative publicity”, he continued. “Trust is a thing they struggle to build. It is expensive, but the tools you have in order to be a David against Goliath is as never before. You’ve got to build a campaign and then fight to create as much embarrassment as possible. The more you can do that, the deeper the scar is for someone to get fired”.

“In that scenario, you’re looking at pressure points”, said Basheer. “In court, it’s often not a level playing field. You can try to level the playing field with PR. But you do have to be careful, because part of that can lead to issues around defamation. If they lose market share as a result and you’re wrong, that causes issues”.

Borkowski continued: “If you were to go out on your own and be more maverick in seeking revenge, and you haven’t got a strong legal mind behind you to check each move, you’re going to get caught. You have to find pressure point. Activate your fanbase. Go deep, do research. There may be someone at that company who’s more sensitive to the stock price of their company, who doesn’t know this is happening. If you can find them, you can get some traction very quickly”.

“I think things are getting better”, Basheer also noted. “A lot of this comes down to what incentivises people. A lot of the time, it’s not the brand, it’s the agency between them. Sometimes there are slips – people aren’t aware what rights need to be cleared. If there’s risk attached, the less people are likely to use stuff. The licensing industry is increasingly becoming an important industry, and there’s business to be done there. Brands recognise that, the industry recognises that”.

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