We all unthinkingly listen to music when we turn on the television. Whether we watch MTV, are addicted to American Idol, sit through the opening soundtrack of any hit series, or just channel surf, we are inundated with lyrics and songs — so much so that we take the presence of music on TV for granted. Stepping back a second, we know that MTV music videos are — obviously — produced and shown with the consent of the performing artists. And we should know that any song chosen for the theme of a series also brings the recording artist some benefits, in that the television studio pays to license the song (and it usually takes off as a hit on the radio, with a corresponding surge in CD sales). But what about those songs that appear ephemerally in bar scenes, or at dance clubs, or the song a character belts out in the shower as he gets ready for work in the morning? Are those also paid for by the TV studios, or are snatches of songs sung on shows permissible use (e.g. fair use)?
The answer is simple, if not necessarily obvious. Generally, the artist is supposed to get a performance royalty, even if just a snippet is used — so that 32 seconds of a pop hit sung by the hero of the series on his commute home could land the artist a check for several thousand dollars. But, as Christina Mulligan has written in her excellent blog post about the hit series Glee, the tension between creation and copyright law may not always find a happy ending — among the many complications of a show that involves weekly mash-ups and alternative arrangements of lots of different music, apparently Bryan Adams still won’t let the Glee kids use his songs (though Coldplay finally relented). So if you were looking forward to a big Summer of ’69 episode, remember that patience is a virtue and pray that the aging rocker has a change of heart.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.