I stumbled upon the below Citibank Identity Theft ad when I was doing research for another post. The commercial was produced in 2006 and features the composition “Unbreak My Heart” by Diane Warren. This is obviously a rerecord. The original version was made famous by Toni Braxton on her 1996 album Secrets.
I licensed this song for Citibank. We did a pretty exhaustive creative search and arrived at this composition. I still think it’s a great fit.
So how is this an infringement. Well, the licensing term on the composition has expired which means this commercial should no longer be available for public viewing. The commercial is owned by Citibank, the composition by Diane Warren. I am sure that neither one of them authorized this use. So in essence this is two infringements for the price of one. And that doesn’t even get into the talent, who if he is SAG, should be paid for all on-line uses of this commercial, which was originally produced for TV.
Okay, so why should anybody care if this is on YouTube. It seems pretty harmless. Somebody was a fan of the spot, they found it funny, which should make Citibank happy since that was the point, and they decided to put it on their YouTube page.
The reason is this, music supervisors do their homework. If you are hired to find and license an appropriate recording for a client’s commercial you begin by executing your creative search. Trying to find music that is appropriate for the creative vision of the commercial. Part of that search is to check into the previous uses of each song that may be a viable option. Yes, clients will license songs for use in advertising even if they have been used by other clients at other times. That being said, if the commercial is still drifting around in cyberspace the chances of that song being re-licensed, especially in the same product category, can be greatly diminished. If you are doing a creative search for Bank of America and you punch Citibank and “Unbreak My Heart” into Google, this video comes up at the top of the list. This would probably not enhance Diane Warren’s chances of re-licensing this composition to Bank of America.
Sure, the odds may be against another financial services company ever wanting to license “Unbreak My Heart”, whether or not it was used by Citibank. But what if there is a chance, and what if you do not have a Diane Warren back catalog bringing in constant revenue. Would you want to potentially miss that opportunity because the spot is viewable on YouTube after the publishing license has expired. Probably not.
There is a lot of talk these days about giving away music for free. Using it as a loss leader to generate email lists, create tribes and to help enhance other revenue streams such as merch and concert tickets. All of those are perfectly reasonable ideas. But they do no nothing to help the songwriter. If the composer is not the performer, they do not get a piece of ticket sales or concert t-shirts or the fragrance or shoe line.
My guess is that the person who posted this video on YouTube knows nothing of copyright and music compositions and licensing. Why would they. They simply saw a funny commercial and wanted to share it with the world. To create a log of their likes and dislikes. I don’t fault them for that.
The question is where do we go from here. This is just one example of potential lost revenue to a creator of intellectual property without the possibility for replacement via an alternate reveue stream. This type of infringement is not so much a loss leader as it creates the potential for a plain old loss.