Using the song "Happy" on a local ad.

Laurence wrote on 4/17/2014, 8:42 AM
I have a client who would like to use the song "Happy" on a local video theater ad. My instinctive reaction is that we would never be able to get away with this copywriter-wise but I'm having difficulty explaining why to the client. Is there a resource online that spells out this sort of thing in an easy to grasp way.

Also, is there any way to use a popular song in a small but public way?


musicvid10 wrote on 4/17/2014, 8:51 AM
"Also, is there any way to use a copywriter song in a small but public way? "

Yes, email the publisher and ask their permission. It helps if you have some kind of professional membership.
There are only three possible responses that can be made:
1. "Sure, go ahead."
2. "Sure, go ahead, but send us a check first."
3. "No."
4. No response. (See 3. above).

Oh, and don't mention the words "fair use" in any communications with the publisher . . .
Laurence wrote on 4/17/2014, 8:57 AM
How about with a cover version of the song?
DavidMcKnight wrote on 4/17/2014, 9:50 AM
Several postings about this on the board over the years. Short answer - you will never get permission to use the recorded hit version of the song, even if you know the artist. For that you need both a sync license and a mechanical license from the record company, and that's what's next to impossible to get for small producers.

It's a little easier to get permission from the writer(s) and publisher(s), at which point you can record a cover version to use. Search this board for "Because You Loved Me" , Any Date, and my user name for more details.

<edit> The reason I say "never" is that we are small potatoes. I would be surprised if you get anything but ignored (which is not the same thing as permission). But hey, in this day and age who knows.
musicvid10 wrote on 4/17/2014, 10:16 AM
Laurence, the owner / publisher of the song is the same in either case. Getting the mechanical rights to a particular cover recording is a separate matter. It's easier when the publisher and producer are one and the same, as is almost certainly the case with "Happy."*

I have found that trying to tiptoe around the process is harder than simply asking, and facing the possibility of rejection. Since Pharrell Williams is a small publisher, not a giant corporation, I wouldn't be surprised if you got a personal response back, even if he wants some $ for a limited use and mechanicals license.

In any event your local station would most likely reject the ad without seeing your limited use license.

A number of years back I asked RUG (Andrew Lloyd Webber) for live performance rights to a song from a musical that had not yet been released in the US; I mentioned that we were members of ASCAP and working in a licensed facility, and his secretary sent me back a "we'd love to" response along with some copy to include in the program.

If it was EMI it would probably be a different matter . .

*I agree with your client that Happy would make quite a catchy background track for a commercial.
Barry W. Hull wrote on 4/17/2014, 11:10 AM

It might not be what you are looking for, but I have purchased some great music from AudioSparx, Copyright issues become a no-brainer. They might have something with the same mood as "Happy".

They are willing to wheel and deal with you, so don't let the advertised price immediately scare you away.
Steve Mann wrote on 4/17/2014, 2:04 PM
The short answer is no.
The theater may have an ASCAP mechanical license already, but the client can't put the video on their website.
Laurence wrote on 4/17/2014, 2:49 PM
>The theater may have an ASCAP mechanical license already, but the client can't put the video on their website.

This is for a theater primarily. I wonder if the theater's license would cover it? Hmmn...
Steve Mann wrote on 4/17/2014, 2:57 PM
If they do, on second thought, it would probably only protect the theater, not the advertiser or the producer.
DavidMcKnight wrote on 4/17/2014, 3:30 PM
I *think* an ASCAP license would cover background music being played while you are getting your seat, spilling your popcorn, telling others around you to hush. Once a song has been expressly used in a video (commercial before the previews), you need a sync license and I don't think the ASCAP license covers that.
musicvid10 wrote on 4/17/2014, 3:39 PM
The ASCAP blanket royalties cover publishing and live performances only, not recording or mechanical licenses.

I should have clarified that in my example above, which was made in the context of a single publisher/producer, as in the case of Pharrell Williams. In those cases, the license may well be a single instrument, unless another label owns a piece of the action.

As always, consult an IP attorney if it starts to get complicated, or if there is more than a little money involved. There are firms that work at reduced rates for small indies and nonprofits..
Laurence wrote on 4/17/2014, 4:04 PM
How about if I do my own cover version. I see people doing that all the time on Youtube and Vimeo, but would I get away with that in a theater?
musicvid10 wrote on 4/17/2014, 4:38 PM
As long as you and your client have written permission from Pharrell Williams, Laurence.
Spectralis wrote on 4/17/2014, 8:19 PM
I suppose a client might understand if you ask them whether they'd allow their company to endorse something without checking what it is or receiving payment for it. For example, if I wrote a song and someone wanted to use it to advertise cigarettes I'd object. I don't think it's just about payment but also about having a say it what to or what not to endorse.
SecondWind-SK wrote on 4/18/2014, 12:13 PM
It is not impossible. Leonard Cohen has recently given permission to several people to use his "Hallilujah" with rewritten lyrics. However, in one case it took several years before Leonard replied with a "sure. go ahead" response. Check this cover out: You won't be sorry.
[r]Evolution wrote on 4/19/2014, 9:15 PM
Yep. You sure can use it however/wherever you'd like.