Ok, let's take a look at licensing different types of recordings, not so much as a creative option, but as a practical/logistical consideration for your campaign. The producer will have four choices:

1. Original master recording(s)
2. A pre-released cover
3. A bespoke re-record
4. A sound-a-like (This really isn’t a legitimate option. At this point in the history of copyright infringement, you’d think there’d be nothing more to say. And yet, it still comes up, so I’ll address it below.)

Original Masters

This will normally be the first recording made of a particular song, many times partly or fully written by the performer, singer, or band members; though there are plenty exceptions. Look, for example at the song written by Dolly Parton, “I Will Always Love You,” released in 1974. Parton made the “original” recording and many others recorded it through the years – (notably Melissa Etheridge, Kenny Rogers, Jennifer Hudson) – but its real fame began with the recording by Whitney Houston in the early 1990’s. What began as an understated little love song, Houston turned into a mega-hit anthem and an over-the-top and highly produced release. So which recording is the “original”? By definition, any recording made by a known artist that gets enough air play (or sales, downloads, etc.) would be considered an original master, even if there are multiple well-known renditions.

Bespoke Re-Records

This is when the brand wants to make a new, custom recording with the original artist or another celebrity not associated with the original recording - in most cases because the artist is actually appearing in the spot, though not always. At my time with the Gap brands, this was done for about 75% of their commercial spots. The artist would record a track, either of something they were famous for, or perform a song that they’ve always wanted to record. In fact, Gap did an entire series of spots where celebrities sang live on camera, songs they had an affinity for – paying homage to the original, though certainly not trying to sound like the original artist.
Covers

The best way to define a “cover” is when an artist records a song, but adds her/his own interpretation to a new recording. Many times, a new cover can be an homage to some other known recording. (Whitney Houston’s recording mentioned above definitely falls into the category of a completely new interpretation, and not an homage to Parton’s original.) With any new recording of a known master, the central question is: Why? Why make a new recording? The answer to that question is a matter of intention. Does the artist intend to bring a new interpretation to the song? If the answer is yes, then this is miles away from re-recording a song to sound “like” some previously known recording.

Sound-a-Likes

A sound-a-like is an “exact” copy of an original/known recording, and that is its intention. It’s all about intention, and that is a copyright holder’s main argument in an infringement case: What was the intention behind making and using such a recording? The category of “sound-a-like” includes both instrumentals and tracks with a featured vocal. Even the recordings sound alone can be considered a sound-a-like and be the subject of a copyright infringement.

Which Recording Option Is Right For Your Campaign?

Obviously, there is a certain status and authenticity in licensing an “original” master in your advertising campaign. Your product can essentially piggy-back onto a particular recording and its artist’s fame. Naturally this will come with a price. Depending on the artist, a brand can expand the simple licensing of a track into a full partnership, including sponsored concerts, events, product tie-ins, on-camera advertising, back-story PR, etc. It becomes a matter of how deeply the artist wants to associate with the brand and product and conversely, how much the brand wants to be associated with the artist. By simply licensing a famous recording, there is a level of association and an implied endorsement by the artist, even if there is no legal partnership that goes beyond the synch and master license. A real partnership with an artist will involve a formal agreement with their label, agent, managers, etc.; outlining all expectations between parties and all deliverables. Remember, anything that comes out of the mouth of a vocalist is owned and controlled by their record label. Even if your brand pays for and creates a new recording with the artist, the label will own that recording and by extension, any future use in terms of publishing rights.

The product association of a particular track is also relevant to licensing instrument tracks. Look, for example of the decades-long association with Gershwin’s “Rhapsody in Blue” and United Airlines and its exclusive advertising agreement with the publisher. The publisher had to have made a conscious decision to have their copyright be forever tied to United – even to the degree that they would be forced to forfeit other licensing opportunities from other brands and products, for a very long time.

The licensing fees connected with using a well-known recording in a commercial spot can be cost prohibitive. Not only can publishing and master rights be on the high end, the talent fee (AFTRA) for the lead singer must be considered. I once licensed a famous recording for a national shoe brand in which the lead singer’s talent fee was four times that of the synch and master fees combined! On top of that, there were musicians “new use” AFofM fees to pay. Because of these back-end fees, it’s a good idea to start negotiating the lead singer’s fees and then work backwards from there. Whatever that total AFTRA fee comes to may indicate what cash you have left over to actually license the master and pay for publishing rights. All that said, if your brand is willing to invest in a big-name artist and recording, there is usually a big payoff in terms of attention and memorability of your campaign.

With regard to creating Bespoke Re-Records, there are several factors the brand/producer should be aware of. Any recording made by the artist, (regardless of who pays for it) belongs to the artist’s label, and the label can demand a master license fee for the use in your spot. There’s one way around this and that is to produce a recording of the entire song, (as opposed to merely the 30 seconds needed for your spot). The label has no use of a 30 second fragment of a song, but an entire track can be exploited on digital platforms or even make its way onto an album. In fact, it’s a waste of recourses NOT to record the entire song when you have everyone there ready to go. Recording the entire track will take more thought of course, as well as a good arranger and producer, but when finished, it becomes an asset to the label. In many cases I have argued for the label to forgo a master synch fee and in most cases, they have seen the value in the new master (that they didn’t have to pay for!) and agree to grant the brand a gratis license for use in its spot.

Recently, high quality covers are valued more than the original recording and become a great asset to a campaign, especially if the cover has a fresh and timely perspective, and compliments the visual elements of the campaign. There was a time when using a cover sounded cheap and was considered a second and third-best solution. We are in a period now where using covers in advertising really is the thing to do. Apple, for example, has had great success with imaginative new covers of older standards in their spots. Keep in mind that usually the original recording was also written (in whole or in part) by the original artist. Many song writers (who are also the recording artist) will not grant publishing rights unless their original recording is used. In some cases, the writer/artist will ask for a higher publishing fee if their recorded version of their song is NOT used; that is, if the producer prefers to go with a cover or custom brand recording.

When should a sound-a-like be used? Never. Especially in advertising! That’s the short and best answer. Here’s a scenario that is worth repeating. A client of mine wanted to license a certain instrumental track by a known band. The fees the publishers and label wanted were too high for the brand and they passed on the use. Instead they went to a production house and ask them to make a track that sounded close to the feel of the original – (I was not privy to the brief). The production house submitted the track and the client used it. A few months later the label of the band contacted me with a notice of copyright infringement. I reviewed the track the client used, and sure enough, it was as close to exact as one could get – even down to the same key, instrumental colors, rhythm, tempo, all of it. The client, by first attempting to license the original track, was essentially admitting to theft by later using the sound-a-like created by the production house. So, never use a sound-a-like, especially if you previously pursued licensing the original!

Brands and agencies should also be aware that a sound-a-like is not only about a literal duplication of note intervals and rhythm. In some circumstances a tracks sound alone is copyrightable. Case in point: Herb Alpert’s Tijuana Brass. I had a client that wanted to do a take-off of the famous album cover of “Whipped Cream & Other Delights.” The client asked me to clear a song from the album, but it came in too high-priced for them. The story boards clearly where imitating the iconic 1960’s album cover. Here again, the client went to a production house and asked them to create something with a similar sound. I knew there would be an issue as soon as I heard the track they had produced and advise them not to use it. Even though the music did not use the same sequence of notes as the original, the sound itself was…absolutely the same. And once again, we come back to intention. The intention was to imply the Tijuana Brass sound, especially with the creative visuals. I consulted other copyright experts and they all agreed. Given the creative and the circumstances of previously pursuing an original track, there was too much risk in using the newly-created production track.

The choice of which song and recording to use in your spot will normally be considered early on in the process; usually during the brand’s in-house marketing department’s creative sessions and, where applicable, with the brand’s agency. Many agencies will engage an experienced music supervisor to coordinate all the moving parts of the project: artist/talent engagement deals, label/artist loan-out agreements, music producer/arranger deals, musician contractor and of course the publishing agreements. Obviously, it’s best to look for an experienced company to work with, and to feel a degree of trust that all the deliverables will be completed without any issues. You also want a company that will follow through with the load of paperwork connected to a campaign, and leave no lose ends.

Michael Welsh is founder/CEO of Michael Welsh Productions, Inc. - a company specializing in music licensing and supervision for advertising, for over 30 years. You can send your questions on related issues to [email protected]. www.michaelwelshprods.com.