Rights Clearance Advertising: Right Of Publicity

Just when I think this subject has been fully addressed and everyone knows what is required, I find some new incident of a singer suing a company because direct permission wasn’t granted by the "principal vocalist," and the company didn’t realized that such permission was necessary. Advertisers should also be aware of similar civil laws that vary from country to country.

SAG-AFTRA Jurisdiction

In terms of a master recording (with a vocal) being licensed to an advertiser, a "principal vocalist" is defined by SAG-AFTRA as a known singer in the role of a soloist, (as opposed to back-up or "Group" singers). A recording can have multiple "principal vocalists;" an obvious example being Barbra Streisand and Kris Kristofferson’s recording of "Evergreen." An advertiser’s non-union production will be subject to SAG-AFTRA rules and regulations, if they license a track in which the label’s master license specifies such jurisdiction. Certainly, any master that is controlled by the major labels – Sony, Warner, and Universal – will include such language in their licenses.

Rights Clearance Advertising

Over the years, this question has come up: Does the actual performer need to sign off of on the permission agreement, or can their representative sign on their behalf? Obviously, it’s better if the performer signs, but with big name performers, this can be difficult logistically and may slow down production of the commercial. For big name performance, I will accept their attorneys’ signature. However, for little-known performers, it’s best that they sign the agreement.

However, the principal performer may, in lieu of accepting such damages, elect to bring an individual legal action in a court of appropriate jurisdiction to enjoin such use and recover such damages as the court may fix in such action.

Foreign and Domestic Civil Law Jurisdiction

Think of Bette Midler and Ford – (1988 for using a Midler sound-a-like) - and then as recent as 2016, when Darlene Love sued Google for using her performance in an ad without her permission. The record label is happy to grant an advertiser a master license, but the advertiser is really on their own when it comes to securing the vocalist’s permission and negotiating a fee. In many cases, the label’s agreement with their artist doesn’t even require them to consult the artist.

Regardless of a recordings union status, the performers union status, the recordings country of origin, the date of the original recording, etc. – Get the principal vocalist’s written permission.

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

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