BY BYRON PASCOE

ILLUSTRATION BY DON DIMANLIG

They want to use my music in a commercial . . . Now what?

A musician today will be contacted by a music supervisor, asking to use their song for a commercial advertisement campaign. If that someone isn’t you, ideally it will be soon, because getting your music placed in ads can be financially lucrative, bring your music to a larger audience, and create more opportunities. The Buick campaign introduced me to Matt and Kim. You probably know their song It’s Alright even if you don’t think you do.

Music supervisors who seek music for TV series, movies, ads, and games get music from music publishers (as their role is to place music) and musicians who aren’t signed with a music publisher. If you receive an offer, there are many considerations to keep in mind to get the most out of the deal. This article covers some of them.

The fee offered will likely depend on the overall ad production budget, how many songs are being considered, how the song will be used, how much of the song will be included, the notoriety of the musician and song, etc.

Both the right to use the specific recording of the song used in the ad (the master use license) and the right to use the underlying composition (the synchronization license) are required when placing music in ads, TV shows, and films.

The master use license is granted by the owner of the recording. The synch license is granted by the song’s publisher. Generally, the fee for both the master use and synch licenses are equal. Another term you may have heard is “sides.” Each of the master use and sync licenses are referred to as a side.

Everyone who controls a share of the master use and synch licenses must give permission in order for the song to be used in the ad. If multiple people or companies share the publishing rights, if any one of them doesn’t want the placement to happen, the remaining publishers don’t have the power to issue the synch license. There may be enough money for one person, but not another. One person may not like the idea of placing the song in an oil industry campaign.

When a song cover is used in an ad instead of the original, the advertiser may have wanted a different perspective on an existing song (woman singing a song originally sang by a man) or thought it would be cheaper to obtain the master use license from a cover band as compared to the cost to use the original recording of the original artist.

While musicians earn public performance royalties, administered through SOCAN, when their music is performed publicly (including on TV and in films), SOCAN does not pay royalties for music used in ads aired in Canada.

In other places, including the United States, royalties are paid for music in TV ads. If the ad with your music airs in the U.S., you will (eventually) get paid, as funds (tariffs) go to ASCAP (one of main U.S.-based performance rights organizations—aka PRO), who pay SOCAN (Canada’s PRO), who pay you.

Other considerations are when the upfront fees will be paid, and how long the rights will last before more money must be paid to extend the time period of the rights. The ad might be used for five minutes or five years. Ideally you’re paid on a recurring basis (such as once annually), and are receiving more money each year for the right to use your music in the ad. If you give rights forever (perpetuity), then you’re getting paid once to use the music in the ad, whether it’s used for five minutes or five years.

This is the concept of option periods, and they aren’t limited to extending rights by time. If you provide rights to use the song in Canada, the agreement may include the right for the advertiser to extend the territory to the United States or the world, for a specific pre-determined price, or a fee to be negotiated.

Another question is whether the placement will be exclusive or not. The advertiser won’t want their competitor to also use your song for a campaign. That seems reasonable, so long as the scope of what defines the industry isn’t too broad. Also relevant are territory restrictions. Generally, whatever exclusivity you provide should be reasonable and properly compensated.

In what media will the ad be used? If you’re told it’s an ad for digital distribution only, the agreement shouldn’t provide the rights to use the music in all media. The result could be that the ad goes on TV, yet your compensation is much less than what you would have received if it were a TV ad from the start. Relating to this are ensuring reasonable option fees to extend the media to TV from online.

What about credit? Many ads aren’t conducive to including the name of the band and song in the ad, but it can’t hurt to ask. Also, there may be digital opportunities to provide credit and links.

A related opportunity is getting the chance to create a new song for an ad. If before the engagement, any member of the band or the entity engaging you (for example, the music supervision company) is a member of the Canadian Federation of Musicians, the relationship between the parties is governed by the union. Their guidelines cover fees, what those fees entitle the engaging party to do with the music and the fees to do more with the music.

For more information contact the Canadian Federation of Musicians.

I’ve covered only some of the agreement terms to consider. If you get an offer, feel free to contact me, and we can discuss. In the meantime, keep making music, and have a look at the online resources with tips about how to get your music considered for ads.

Byron Pascoe is a lawyer with the Ottawa-based Edwards PC, Creative Law (www.edwardslaw.ca), which provides legal services to Music, Digital Media, Game, TV, Film, and Animation industry clients. He can be reached at byron.pascoe@edwardslaw.ca 

Byron works with musicians and music companies to assist with record label agreements, publishing contracts, distribution deals, producer agreements, band agreements, etc. 

This article is for general informational purposes only and is not to be construed as legal advice. Please contact a lawyer if you wish to apply these concepts to your specific circumstances.