Budweiser has landed itself in hot water for its recent award winning ad campaign which featured some of the “world’s most iconic songs” with reportedly “$0 spent on music rights”.

The ad in question, created by agency Africa Creative DDB, won a prestigious Cannes Lions Grand Prix award and included one-second snippets of popular songs from artists such as The Beatles, Beyonce and Taylor Swift, encouraging fans to guess the track. At its core was the concept that true music fans can recognise their favourite tracks instantly.

Presenting the award, the president of the Cannes Lions jury was reported to have remarked that the ad was, “… fresh and it harnessed the power of music, which is one of the biggest passion points of consumers”, before adding, “from an efficiency point of view, for one second of an ad you don’t have to pay” for music rights.

These statements quickly generated controversy online. It’s not unusual for companies to try and cut corners to lower costs: licence fees for use of music in ads can often be heavily negotiated. It was surprising however that one of the world’s biggest beer brands and its agency were so open (and proud?) about not paying for music rights, and furthermore that Cannes Lions, which claims to be the international festival for creativity, rewarded them for doing so.

Budweiser’s parent company, Anheuser-Busch InBev, has already apologised for the ad, but beyond the optics, it’s interesting to consider on what legal basis all parties involved in its creation understood that they didn’t need to pay for the music featured in the ad. There’s long been claims made about how many seconds of a song can be used without infringing copyright – anywhere from 7 seconds to 30 seconds – but these are just myths.

The Law – A ‘Substantial Part’

The ad was created in Brazil which has its own copyright laws. Under English law however, the key test when considering infringement is whether a substantial part of the copyright work has been copied. This is a question of fact in each case and is primarily a qualitative not quantitative test. Even one second of a song can amount to a ‘substantial part’ for copyright infringement purposes, provided that there has been a copying of elements which reproduce the author’s intellectual creation.

The more music the ad had used, the likelier a court is to conclude that infringement has occurred. But think about your favourite songs. Would you be able to identify them from the first few seconds? Whether it’s the opening chords of ‘Stairway to Heaven’ by Led Zeppelin or the iconic synths in Donna Summer’s ‘I Feel Love’, these small parts, although insubstantial in quantity relative to the whole song, express a high degree of originality which lends these works their distinctive character. Reproducing them, even in part, puts you at greater risk of copyright infringement.

In the reported words of the agency which created the ad, “…when media is used right, even one second can leave a mark.” This admission, which goes to the heart of why the ad connected with the public in the first place, paradoxically also helps explain why this use of the music in the ad campaign would likely constitute an infringement of copyright under English law.

Use of Music Commercially

Most commercial uses of music will require payment of a licence fee for use of both the composition and sound recording. Even if you think you don’t need to pay for the use of music, you should consider the reputational risks not doing so may attract. In a time where artists and creators are using their platforms to speak out about fair compensation for use of their music, commercial music licensing is a key revenue stream for many artists and you don’t want to be on the receiving end of an infringement claim or media storm.

Putting aside the copyright considerations (there are other legal considerations which may also be relevant), what this recent ad campaign has shown is that in a media landscape where brands are constantly competing for people’s increasingly limited attention, music has the unique power to connect with the individual and drive engagement. Even if only for one second.

Find out more about our expertise in Music here.

Ad image credit: Africa Creative DDB