Budweiser, the Anheuser-Busch InBev owned beer that perfectly answers the question “what would happen if pond water had delusions of grandeur”, has won one of the advertising industry’s most prestigious prizes for a music-driven ad campaign using “the world’s most iconic songs”.
That campaign apparently delivered 68 million impressions across TikTok in its first two weeks, with the brand boasting that “zero ads were skipped and $0 spent on music rights”.
The campaign, which ran in Brazil, was created by agency Africa DDB and, according to a breathless statement from Xolisa Dyeshana, President of the Cannes Lions jury that presented the prize, it’s “exceptionally creative”. He continues, “It’s fresh and it harnessed the power of music, which is one of the biggest passion points of consumers”, before adding, “from an efficiency point of view, for one second of an ad you don’t have to pay rights or publishing”.
Describing the campaign on Instagram, DBB Worldwide says, “In a platform where attention is hard to hold, @africaoficial and Budweiser didn’t ask for more time; they chose to do more with less. They created a campaign entirely of one-second ads, based on a simple truth: real fans know their favourite songs instantly. Too short to scroll past. Too personal to ignore. Because when media is used right, even one second can leave a mark”.
In a sizzle-reel for the campaign, the so-called ‘King Of Beers’ poses the question “Do you know this song? And this one? And this one too?” whilst playing one-second long snatches of The Beatles’ ‘Come Together’, Queen’s ‘Another One Bites The Dust’, and Dr Dre’s ‘Still Dre’.
The purpose of the campaign, says the sizzle, was to target the “0.5% of real fans” who were able to recognise the songs “in just one second”, and it was launched “right where everything moves really fast: on TikTok”.
Against a background composite of vertical video with slogans like “POV: You’re doomscrolling at night” and “You’re doom scrolling again” splashed across them, the brand says that “instead of making another 30-second ad that people would instantly skip” it created a “series of one-second ads”.
Budweiser seems tone deaf to the fact that most people who fall within the “0.5% of fans” who care so much about music that they can instantly spot iconic songs from the briefest snatch are probably also people who care about the artists and songwriters they love being properly compensated for their work.
However, the lads-on-tour beer brand says that the “one-second ads” that it created use “the minimum fans need to recognise a song” which is also, they claim “the maximum allowed without paying for music right$”.And yes, they really did use the dollar sign like that.
The irony of a bargain-basement beer - which can be picked up for as little as 39p a bottle - owned by a company worth $128 billion boasting that it has successfully avoided having to pay for music in its advertising is something that is going down across the music industry like a cup of cold sick.
Which, as anyone unfortunate enough to have experienced Budweiser knows, is a pretty good approximation for its taste profile.
Shez Mehra, partner and Chief Marketing Officer of Audio Branding, a Toronto-based audio-first consultancy that specialises in building affinity and equity through the strategic and intentional use of sound, called out AB InBev in a Linkedin post, saying “Imagine a musician using ‘one second’ of a Budweiser logo. See how fast the AB InBev legal team shows up…”
Mehra goes on to ask “Is this the bar now? No one in that room stopped and asked: what are we really rewarding here? This wasn’t a win for creativity. It was a loss for the culture”.
What’s not clear is whether the “one-second campaign” actually avoids having to pay for the music used, and, in fact, Budweiser’s campaign poses a number of interesting copyright questions, about the duration or substance of a piece of music being used in this context.
Dave Chase - a music director and founder of LSTNR, an agency that provides creative music services for luxury and fashion brands - notes that the campaign is “Creative, perhaps… in their assumptions that they can use any length of music without paying a licence fee”, adding that commercial use of music would normally require a “fully-paid up music licence”.
While Brazilian copyright law, like copyright law in most countries, provides a number of specific copyright exceptions - where copyright protected works can be used without the copyright owner’s permission - none of these appear to apply to Budweiser’s commercial use of one second snatches of “the most iconic songs in the world”.
Therefore, whether or not Budweiser needed a licence to use these one second clips hinges on whether a short snippet of music is substantial or original enough to enjoy copyright protection. The answer to that question might be different for the two different copyrights contained in the one second clip - the copyright in the composition and the copyright in the recording.
Assuming the snippets were taken from the most famous recordings of those songs, then there is both a recording and a composition being used. And the rules may be different for the recording. A good parallel here is past legal disputes relating to samples.
In Europe, a landmark case involved the sampling of Kraftwerk’s ‘Metall auf Metall’. The European courts concluded that, when it comes to the recording, a licence is needed for even a very short sample. Which would mean, in Europe at least, Budweiser would need to secure a licence on the recording side for its ads, unless it recreated the recordings and therefore didn’t actually copy the originals.
While it’s possible the agency behind the Budweiser campaign did rerecord the samples - which would mean they and their client would not need a licence to use the original recordings, because they weren’t used - it’s less clear whether there is any minimum threshold for use of a composition in Brazilian law.
With the composition, generally a few notes in isolation are not considered substantial or original enough to enjoy copyright protection. Although that depends to an extent on how we define ‘originality of expression’ - in many countries the key requirement for copyright protection to apply.
The central theme of Budweiser’s campaign poses an interesting question. Although it may feel like a single second of music cannot possibly constitute ‘originality of expression’, the whole point of this campaign is that - for some people at least - that single second is identifiable. Which, you might argue, means it’s also original.
The campaign’s entire premise - that these snippets are instantly recognisable to “real fans” - effectively undermines any argument that the extracts lack originality or distinctiveness.
In copyright terms, they’re essentially admitting that these one-second segments contain elements of each composition that are both memorable and distinctive, which courts might consider when making a determination on whether a use constitutes infringement.
This self-defeating logic could prove particularly damaging if rightsholders pursue legal action, as Budweiser has not only publicly celebrated the characteristic that makes their use potentially legally vulnerable, but has given detailed accounting - 68 million impressions in two weeks, 125k guesses, 4878 coupons redeemed - to back up any potential action.
Beyond those debates, in some countries, there may be a case for suggesting that other creator rights have been infringed by the award-winning campaign. By Budweiser’s own admission, the one second snippets are designed to connect the brand to a track and therefore an artist.
Which might constitute an infringement of moral rights in copyright law in some countries, or a breach of the separate publicity or personality rights that exist in some jurisdictions.
Given these ambiguities and arguments, it may be that - despite the boast of “$0 spent on music rights” - deals were actually done behind the scenes by Budweiser with the artists or labels whose music was used in this campaign. The lawyers who work for billion dollar brands tend to be rightly cautious about these things.
If not, it will be interesting to see if any of the labels or publishers whose music was used want to test any of these ambiguities and arguments in the context of Brazilian copyright law (or elsewhere, depending on where the video clips were seen).
And if nothing else, the Cannes Lions jury should probably be cautioning the ad industry it honours that, when it comes to music rights, things are tricky and it’s dangerous to assume there are any free rides to be exploited. Even if it doesn’t result in legal challenges, doing so will make any future claim that you’re a brand that “champions creativity and culture” very hollow indeed.