Vocalist’s Rights in Advertising
Just when I think this subject has been fully addressed and everyoneknows 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. After all these years, many advertisers still think that all they need is a synch and master license; or they think that because their production is non-union, that union rules don’t apply to them; or they are unaware of International civil laws that pertain to this subject. This issue of obtaining vocalist’s direct permission to use their performance in a commercial, goes beyond union (SAG-AFTRA) rules. Many States (like California), have “right of publicity” laws in place to protect performers from exploitation by advertisers. 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, Universal – will include such language in their licenses. By signing the label’s master license, the advertiser must act “as if” their production is a union production. This begins by obtaining the “principal vocalist(s)” direct permission to use their voice in a commercial: “[No singer’s performance] shall be used in commercials without separately bargaining with the principal performance and reach an agreement regarding such use…” – Section 28 of the SAG-AFTRA Commercial Contract.
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. Many times, lesser-known performers are managed by a friend or family member and that can be dubious.
The consequences for not obtaining permission from a SAG-AFTRA member/performer will be controlled by union rules, up to a point. Again, from Section 28…
If Producer fails to separately negotiate as provided above, the principal performer shall be entitled to damages for such unauthorized use equivalent to 3 times the amount originally paid the principal performer for the number of days of work covered by the material used plus the applicable minimum use fees under this Contract but not less than 3 times the applicable session fee at the rates provided under this Contract plus the applicable minimum use fees under this Contract.
The performer can accept these rules for being compensated, or they can file a separate lawsuit and demand ANY amount of money:
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
As mention above, California and other States have specific laws in place to protect performers from exploitation. Similar laws exist around the world in many countries. Since most Internet advertising is world-wide, it becomes crucial to lock down these permissions. Remember, a performer’s voice being connected to a product or service implies their endorsement of that product or service. 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.
This is all to say, 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. It’s best to go by the SAG-AFTRA’s definition of a “principal vocalist” and ask these two questions: 1) How many singers are there? and 2) Are they singing solo lines? For reasons stated above, it doesn’t even matter if they’re known or unknown. Just do it.
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.