Original Works

There are two important rights in an original copyrighted work: Intellectual Property (IP) and Moral Rights.

IP is something unique that you physically create. An idea alone is not intellectual property — i.e. an idea for a song is not intellectual property, but a song you’ have written is. IP rights are legally-recognised exclusive rights to the mind’’s creations. Under intellectual property laws, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary and artistic works, which last for 70 years after the death of the creator.

In music, as in all creative work, IP exists at the point of creation. All music IP is the same. There is a common belief that a jingle, sting, mnemonic or a piece of sonic branding might be different due to its brevity, but this is not so. All forms of advertising music or sonic branding are treated in exactly the same way as pop songs, film scores or classical works.

Moral Rights in UK law are parts of the copyright law that protect the personal interests of the author of a copyrighted work and are the due rights of the creator/s. They include the right of attribution, the right to have a work published anonymously or pseudonymously and the right to the integrity of the work. For practicality in commercials, we waive our Moral Rights for the Term of the Licence only, with the exception of the right of attribution, which means that advertising agencies ARE required to credit us whenever and wherever reasonably practicable in whatever medium. Equally, music companies should credit their composers too!

PRS for Music (Performing Rights Society)

All rights in original compositions are automatically assigned by the composer, by law, to PRS for Music in order that they may monitor performances of the work globally and collect, on the composer’’s behalf, all ensuing royalties from relevant territories and ensure creators are fairly remunerated. Whether it’’s a two-second sting or a two-hour symphony, it’’s all the same (although, naturally, the length and medium determines the amounts payable). This system has been in operation for 100 years (literally) for a good reason: royalties provide an essential income stream without which the music industry would struggle to function. It is not a free pot of money, up for grabs by whoever cares to claim it (as some would lead us to believe), but a legitimate payment for writers and publishers providing a quantifiable and bona fide service.

There’ is a widespread misconception about how royalty payments are made and who makes them. Some clients (and even some advertising Agencies) believe they are responsible for them but they are wrong. These payments are the sole responsibility of broadcasters and/or content providers who pay a levy (a ‘blanket licence’) to PRS for Music based on the consumption of music on a channel/medium over a given period. It never involves the clients, or the Agencies.

Despite this, some clients still want to obtain the IP. They might want to avoid having to deal with Moral Rights, for example, which restrict how a piece of music can be modified without the writer’’s consent. They might want to have the freedom to use the work for a lifetime without further licensing payments. This is might seem fine and dandy from a Marketing Director’’s perspective, but obviously not from a creator’’s standpoint. To assign rights to someone else, a creator would have to pretend that either the rights weren’t theirs in the first place or simply didn’’t exist, and why on earth would they do that? In the case of advertising commercials, a lifetime or ‘in perpetuity’ licence is an absurdity, though unfortunately it’’s becoming increasingly popular for clients to ask for this. Advertising is ephemeral and social mores-driven and no commercial/product lasts forever. Most campaigns run for a few years at best, so there is no need for an Agency or client to acquire a lifetime’’s usage when a few years will suffice. Never ever give up your IP — it is your birthright.

Arranged Works

Making an arrangement of a copyright work is a restricted act under the Copyright, Designs and Patents Act 1988. This means: you cannot legally arrange someone else’’s work without their permission. You must have the permission of the copyright owner, not the licensee (Agency permission in the UK is not enough since it is extremely unlikely that the Agency will own the rights to the music).

The points above do not apply to original arrangements of works in the public domain (out of copyright). However, they do apply to copyright arrangements of work in the public domain once the original arrangement has been made. For example: you make an arrangement of “I Do Like to Be Beside the Seaside,” which is classified as a copyright arrangement. No one else may adapt your arrangement without your permission.

Non-royalty-bearing licence

This kind of licence is virtually unheard of in the UK, as it is not strictly possible to waive IP and Moral Rights. If a client, however, is intent on obtaining effective ownership of the work, the remuneration would have to be sizeable, as you can appreciate, to compensate for the potential loss of income arising not only during the life of an advertising campaign but, by law, any royalties arising from secondary exploitation of the work up to 70 years after the composer’’s death.

This kind of agreement, therefore, is very much an exception to the rule, and PCAM would advise against ever accepting such a licence – even if rare examples have allegedly attracted fees in the region of £250k+!