Whenever we set music to picture, especially in advertising, there are inherent copyright risks. The music we chose might resemble something else. Or we may have created our music with a pre-existing work in mind. (And there’s absolutely nothing wrong with that.) And even if neither of those is especially the case, advertising campaigns bring high exposure. And observations and accusations of plagiarism, even while completely specious, are a function of that reach. Preventative musicologist analysis has become standard practice, and clients appreciate that it’s a quick and cost-effective process they can make in the final steps before a campaign launches.
“Preventative forensic musicology” is the application of music analysis and research, and often the comparison of two or more works to first illuminate and then mitigate the hypothesized risk of allegations of copying, plagiarism and copyright infringement. It asks, “Is someone likely to make a claim?” And seperately, “would such a claim have any merit?”
And to be honest, it might be the best thing we do. Preventing conflict is better than initiating or defending against it.
Recent high profiles cases have raised awareness, and accusations seem more common than ever. Dua Lipa, Ed Sheeran, and Disney’s Frozen are all currently in litigation as this article is going up. In response, megastars like these have begun to incorporate strategies such as seeing declaratory judgments, video-recording songwriting sessions, and commissioning forensic musicologist reports for new works in advance of, and thus perhaps warding off, specious accusations of infringement.
Music for advertising has characteristics that make avoidance of conflict particularly worth seeking, and it’s unsurprising that a musicological review prior to launch is becoming standard. In advertising, unless there’s a big budget to license a well-known song, it is common practice to create new music that shares qualities — style or vibe, for instance — with that well-known song. There’s nothing wrong with that in a pure sense, inspiration is not an infringement, but it carries with it obvious risks.
Then there’s the exposure. While the observations of similarity from laypersons on social media and other intellectual property “watchdogs” are frequently exaggerated or mistaken, a barrage of comments that say something like, “WOW, that sounds just like ‘song X” is better avoided altogether where possible. In fact, social media has reached the point where this was the year I noticed the number of new clients saying, “Someone on social media pointed out to me that my song was stolen!”
And perhaps most importantly, there’s the client relationship that agencies would prefer to nurture and protect. What’s more paramount than this?
Conducting preventative musicology illuminates matters of similarity and originality — the main pillars of infringement avoidance. Forensic musicologists analyze the quantitative and qualitative similarities that might exist between two works, research whether such similarity is comprised of material that is original and protected by copyright, or conversely comprised of elements substantially existing in what’s called “prior art,” works that preceded Songs A and B. But the goals are not merely to avoid actual infringement but also to avoid even unreasonable accusations because, unfortunately, those present risk as well.
Preventative forensic musicology seeks to avoid issues altogether. Where concerning similarities are found, musical recommendations can usually be offered to mitigate the perceived risk, and clients are usually surprised at how easily recommended edits can be put into action. Sometimes it’s a few clicks, but it makes a huge difference.
A preventative musicologist report is a demonstration of care and concern for the client; a discouragement of frivolous infringement accusations; and to anyone who might perhaps not be able to discern inspiration from copying, it shows the specific intent and objective to not infringe on anyone else’s intellectual property. This is best practices now, and clients appreciate and increasingly expect this level of care. We’re happy to help deliver it with our advertising agency clients.
For Preventative Musicology Inquries Contact: (212) 217-9512
