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Is your business licensed to play music? If not, don’t let your background music come back to bite you.

No-one particularly likes silence, especially if you want to create a vibe for your customers while they sip on their roasted double espresso or meander through your store. What’s the solution here? Legally, what are your responsibilities around music licencing?

Some clearly audible yet not intrusive background music, maybe streamed straight of your specifically-compiled Spotify playlist or your favourite radio station.

Nothing could possibly go wrong! Right?

Unfortunately it can if you don’t hold the correct music licenses which permit you to play copyrighted sound recording in your business. This isn’t a bad thing – it’s a way for artists and record labels to earn income from their work.

In October 2018, Melbourne Bar Hairy Little Sista learned this the hard way when they were
ordered to pay nearly $200,000 in damages for playing nine songs by popular artists including the Beetles and Blue Suede in their venue without paying license fees.

Despite being warned numerous times that Hairy Little Sista was unlicensed and was therefore infringing copyright, they brazenly continued to do so. Several more letters and one Federal Circuit Court of Australia judgment later, the small business was ordered to pay $185,000 in damages plus costs.

How can you ensure you don't get fined when playing copyrighted music within your business?

Simple... Get Licenced

It’s illegal to play copyrighted music for commercial purposes without a license. Under the Copyright Act 1968 (Cth), anyone who wishes to broadcast, communicate or publically perform copyrighted sound recordings must obtain a license to do so from the copyright
holders.

It’s not just music streaming or CD’s that you need to be licensed for. You also need a license if you play music videos on a screen in your business, or the radio as telephone hold music.

Confusingly, businesses will often require two licenses, one for the actual song (the composition and lyrics) and another for the recording of that song.

PPCA License - The first type of music licence

The first license is from the Phonographic Performance Company of Australia (PPCA), which is an organisation that represents the interests of record companies and Australian recording artists.

The PPCA collects license fees on behalf of recording artists and labels, ensuring that they receive a fair return for their music. There are a variety of different licenses available, depending on what you are using their music for, for instance, telephone hold music or background music in a store.

You can apply for a PPCA license below.

APRA License - The second type of music licence

The second license commonly required is issued by APRA AMCOS (APRA), who represent songwriters, composers and music publishers.

APRA licenses organisations and businesses to play, perform, copy, record or make available music, and collect royalties on behalf of their members. As APRA issues specific licenses depending on the type of business you are operating (for instance, a restaurant, fitness centre, hotel, or background music for an office), it’s important that you select the license which corresponds to how you
intend to play music.

You can select and apply for the correct APRA AMCOS license below.

No cookie-cutter licensing solution

Of course, the needs of every business is different, and that includes how they play copyrighted music or videos. If you want to ensure that your business is correctly licensed, contact one of our intellectual property experts today on 02 8644 6000 or info@lazaruslegal.com.au.

References

[1] ABC News, Melbourne bar Hairy Little Sista ordered to pay nearly $200k for playing songs without a license, 5 October 2018

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Anneliese Oldcastle is proof that good things come in small packages. With a strong background in both commercial and family law, Anneliese’s practice focuses on family law, succession law and family provision claims, as well as contract law and consumer or commercial disputes. She’s an advisor proficient in untangling the complexities of relationships, legal or otherwise.

June 6, 2019/0 Comments/by LazarusLegal

Legal Implications of Influencer Disclosure

Business, Commercial Law, Disputes and Litigation

Do influencers fully understand their obligations to disclose?

I get it, ‘Legal protection’ doesn’t fill you with excitement when thinking about starting your own business or protecting yourself as a social media star. In fact it’s probably the last thing on your mind……the thing is, it’s kinda important. I know it’s not glamourous but it could jeapordise everything you’ve worked so hard to create if you ignore it.

This is the first of a ‘mini-series’ of posts aimed at educating individual influencers and businesses on legal considerations you need to keep up to date with. The first in this series deals with ‘disclosure’ as an influencer.

When social media was in the early stages, influencers would post photos, advertise brands, get paid for promotions with no regard to the implications. To be fair social media grew so quickly I don’t think the law could keep up. However, things have changed and there are some things you need to know about as an influencer and disclosure.

What changed?

Last year (around March 2017) you may have noticed your favourite influencers disclosing ‘paid promotion with….’ at the top of their posts or #ad in the hashtags. In fact, there was a lot of hype over the new laws requiring influencers to disclose this to their audience.

The effect came about because of the need for transparency for the target audiences of influencers who are being subjected to an advertisement. The new provision was implemented by the Australian Association of National Advertisers (AANA) in March 2017.

Specifically, the AANA stated: “Advertising or marketing communication must be clearly distinguishable as such to the relevant audience” and the advertiser has ‘a reasonable degree of control’ over the material.

What kind of marketing does this apply to?

The most common type of influencer marketing is when a company arranges with an influencer to post content on their social media regarding their brand. In this case, it must be clearly distinguishable as determined by the AANA. This is done correctly when we see posts including a tag @ the company, hashtags regarding the company name, #ad or similar wording which has the same effect.

If, on the other hand an advertiser sends the influencer product with no conditions attached and the influencer goes ahead and posts about the product, then the new provision of the code would not apply due to the lack of content control by the advertiser.

Are the new regulations working?

According to an industry report titled ‘The state of social media and influencer marketing in 2018’ published by the Exposure Co, they found that the majority of the participants did not understand the regulations and how to use them. According to the research ‘six out of 10 participants said they did not know the meaning of #sp (sponsored post) or #ad’.

There is no absolute requirement that advertising, or marketing communication must be labelled. If the relevant audience can make a clear conclusion that the content is commercial in nature, then no further disclosure or distinguishing element is needed.

What if you are in breach of the code?

A complaint or a breach of the Code can be made to the independent Advertising Standards Bureau. If a dispute is lodged, the bureau’s complaints board must decide whether or not any of the advertising claims disputed are not substantiated. They then provide a case decision to the advertiser with an invitation to produce an Advertiser Statement stating whether the claims will be modified or discontinued. The Board then issues a final case report to the parties after a response has been received, identifying the advertiser, the product, the subject matter involved and the decision. Where an advertiser does not agree to modify or discontinue an advertisement found in contravention of the Code, the Board can also refer the case report to an appropriate government agency and/or forward it to media proprietors. For example, in some instances there could be potential liability under the Competition and Consumer Act 2010 (Cth) for misleading or deceptive conduct, in which case the case report might be referred to the ACCC[1]. The Australian Competition & Consumer Commission (ACCC) is the Federal Government regulator looking after the interests of consumers and competition in the Australian market place. It administers the Competition & Consumer Act 2010 and this Act contains the Australian Consumer Law (ACL) which applies to the commercial practices of any person, company or business in Australia.[2] As mentioned above and important for the influencer industry, the ACL prohibits misleading or deceptive conduct and specific misrepresentations, including testimonials (Sections 18 and 29). Breaches of the ACL are far more serious and court action can be brought against all parties involved in the publishing of a post, including the brand, agency and influencer. For individuals, the penalties for each infringing post can be as much as $220,000 and for company brands up to $1.1 million[3].

What are the 'Grey Areas'?

As with any rules and regulations and with social media platforms developing so quickly there are bound to be some grey areas that haven’t been considered.

When a company sends an influencer a free product in the mail, without any obligation that they post about this product on their social media channels. The AANA’s Code of Ethics says that since the company has no control over whether any promotion occurs following this, if it happens to be posted by the influencer, it is NOT considered advertising or marketing communication.

Another implication is if the post was made during the course of trade or commerce. Because if it is, and the post is likely to mislead the consumer public, it could well still fall under the realms of the ACL.

Are the laws in Australia the same overseas?

This article discusses the law here in Australia and the legislation does vary a bit from country to country. In the US it is worth looking at the Federal Trade Commission (FTC) to stay updated with their disclosure laws. In the US, the rules go so far as to say that influencers must even disclose all free products they talk about.

Is there a checklist for Influencers?

Disclose and label your posts to be transparent and authentic! It is just not worth hiding when you are getting paid to promote a product or market a brand.

I also think transparency as an influencer builds trust and engagement with your audience. If you are unsure, I would disclose the nature of the agreement with the brand concerned – e.g. ‘Because I believe and use X Brand so much, they just sent me this awesome activewear set to help them promote it and share with you all! #ad’ and tag the brand to make it completely transparent to your audience.

References

[1] http://pointonpartners.com.au/advertisers-beware-social-media-influencers-paid-promote-products-must-disclose-commercial-nature-posts/

[2] https://mumbrella.com.au/brands-agencies-influencers-can-avoid-legal-trouble-comply-new-ad-transparency-rules-424597

[3] https://mumbrella.com.au/brands-agencies-influencers-can-avoid-legal-trouble-comply-new-ad-transparency-rules-424597

Did you enjoy reading this article, share it with others.

Sophie Benbow is part of the team at Lazarus Legal in Sydney and has a special interest in Social Media law and Intellectual Property. She also has a blog herself and has been exposed to the social media industry. She wants to provide creatives, small businesses, influencers and start ups with current and concise information surrounding their own brand and business.

If you would like to get in touch with Sophie, feel free to contact Sophie and the Lazarus Legal team on info@lazaruslegal.com.au.

February 19, 2019/0 Comments/by LazarusLegal

Energy drinks – to drink or not to drink that is the question!

Business, Commercial Law, Disputes and Litigation

Energy drinks have been reasonably quiet in the media for some time now, so it was only a matter of time before they made their way back into the headlines! Find out more…

January 18, 2019/0 Comments/by LazarusLegal

They Trade Marked What?

Business, Commercial Law, Disputes and Litigation

From song lyrics to colours, to signature poses. Over the years, there have been some unusual and unexpected trade marks that have been both successfully and unsuccessfully registered.

November 22, 2018/0 Comments/by LazarusLegal

Fast Moving Consumer Goods – Protect Your Brand!

Business, Commercial Law, Disputes and Litigation

You may have probably already seen the cheap knock-offs in the dollar store of products that are designed to look a lot like popular culture brands – transforming toys that aren’t quite “Transformers” or “Space Wars” ships and aliens that remind you of a popular movie series.

November 15, 2018/0 Comments/by LazarusLegal

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Lazarus Legal Blog

Legalities of Playing Copyrighted Music In Your Business

Is your business licensed to play music? If not, don’t let your background music come back to bite you.

Nothing could possibly go wrong! Right?

How can you ensure you don't get fined when playing copyrighted music within your business?

Simple... Get Licenced

PPCA License - The first type of music licence

APRA License - The second type of music licence

No cookie-cutter licensing solution

References

Legal Implications of Influencer Disclosure

Do influencers fully understand their obligations to disclose?

What changed?

What kind of marketing does this apply to?

Are the new regulations working?

What if you are in breach of the code?

What are the 'Grey Areas'?

Are the laws in Australia the same overseas?

Is there a checklist for Influencers?

References

Energy drinks – to drink or not to drink that is the question!

They Trade Marked What?

Fast Moving Consumer Goods – Protect Your Brand!

Categories

SUBSCRIBE TO OUR NEWSLETTER

What our customer say