I can’t believe this is something I’m doing today, but here we go.
I’ve seen some confusion about how the approvals might have worked for the new Coca Cola ad featuring a 1D song, and what appears to be, at least, a Harry Styles look-a-like.
I’m not a lawyer. I work in the creative industries, and have to deal with copyright all the time. It’s also a weirdly specific area of interest for me, because if you don’t LEARN to be interested in it, you end up getting into trouble.
I’m pulling on years of working in this area, and checking facts by referring to “Owning It” a book on intellectual property law SPECIFICALLY written for the creative industries in AUSTRALIA. I happened to go to the book launch for this book just last night.
Laws in Australia are different, but similar to laws in the US and the UK. If my research is accurate, then the following SHOULD apply globally, but there might be some specifics I miss.
Here we go:
Music copyright is held by whoever did the intellectual or physical work. In One Direction’s case, the copyright for the song Clouds is held by the writers, the performers, the people who did the recordings (the recording studio), and -usually- by whoever commissioned the recording in the first place (Sony/Columbia).
Copyright cannot be sold. This is an important distinction. It can expire, and all copyright eventually does expire, but you can’t sell your copyright. One Direction (and all its moving parts) continue to own the copyright for Clouds.
Each part of the process is copyrighted separately, and can be licensed separately:
What you CAN sell however is the license to use/sell/edit/recreate/etc to your work. So, in this case, One Direction (and all the associated parts which own a stake in the copyright of Clouds) can make an agreement with someone (Sony/Columbia or a management company) that allows that person or company to use the copyrighted work.
ONE of the licensing deals, which would form parts of the management and recording contracts, might be that 1DHQ can allow commercials to license a track from One Direction. They can create a license that allows a company to use the track in advertising worldwide, for a specific territory, or for a time-limited period. The terms of the license are negotiable, but MOST licenses are granted for worldwide use because everything gets uploaded to YouTube eventually.
This is important because at least one of the characters in the ad appears to be a Harry Styles look-a-like.
You can’t trademark a “style”. For instance, Fleetwood Mac can’t trademark their particular, unique sound, which is why they can’t sue One Direction for Fireproof. One Direction isn’t claiming to BE Fleetwood Mac in Fireproof, but it does sound like a Fleetwood Mac song. If they’d used chords from a Fleetwood Mac song, that’s a different story, but hopefully you now understand that style can’t be trademarked.
A LIKENESS however CAN be trademarked (it’s insane the number of things you can trademark, including colours, sounds, movements!). I, personally (and I have no evidence for this) don’t believe that Harry’s likeness has been trademarked. If it has, I’ll update this. That just means that people can look like Harry Styles without getting into trouble, and without seeking permission. If his likeness has been trademarked, then a license would have to be negotiated to create a look-a-like character.
So what does it mean?
There are organisations that organise the royalties for songs used in advertising. ASCAP etc. collect and distribute those royalties to the copyright holders. They do not NECESSARILY negotiate with brands wanting to use songs that they work with.
When it comes to advertising, LICENSE holders (not copyright holders) can negotiate with brands to have the song/s they hold the licenses for included in advertising. If the license holder gave their licensing powers to ASCAP, then ASCAP would negotiate with the brand (unlikely).
1DHQ (management, Sony/Columbia), I believe, would have had to negotiate directly with the representatives from Coca Cola about the use of Clouds.
1DHQ holds a license which would allow a third party to perform the LYRICS and MELODY of Clouds. The performer in the commercial then holds the copyright of his performance, and licenses his performance to Coca Cola.
It doesn’t matter that the amount of song used is less than thirty seconds. That’s not a real rule.
It doesn’t matter that the song is modified from the original by the inclusion of the bottle drumming (incidentally, the copyright of which is held by whoever performed the bottle drumming), as the song is not substantially different from the original.
The final bars of the actual song Clouds is licensed a separate song, once which they would have to pay more for, as there are additional copyrights held on that song.
1DHQ would have had to have had approval of the use of the song in that commercial, EVEN if they didn’t know exactly the content of the commercial. Unless they specifically requested a final-cut approval (where they could veto the commercial if it didn’t match their One Direction branding goals) they would not have seen the commercial before it went to air.
I don’t know who holds the license for One Direction songs being used in commercials, but my GUESS would be Columbia Records.
The curious thing then, is that Columbia and Sony have a LONG history with Pepsi, so the use of one of “their” songs in a Coca Cola commercial is certainly unusual and interesting, but might mean nothing.