Indoor cycling company Peloton pedaled into some legal trouble
in March—to the tune of $150 million—when the brand was sued
for trademark infringement by a group of music publishers
representing the likes of Lady Gaga and Bruno Mars. For Peloton,
which has made a name for itself by selling a fitness experience
built on music, the lawsuit exemplifies a larger issue that newer
brands face as they grow from scrappy upstart to seasoned
“The small startups may get away with using music without a
royalty for a couple of reasons: They’re unknown to musical
artists or their publishing houses, or they’re just too small to
be bothered with,” says Scott Rogers, a partner in the copyright
and trademark litigation group at the law firm Ulmer & Berne.
“But as companies grow, continued use of unlicensed music
certainly has the potential to be a real problem for them.”
When Peloton debuted seven years ago, it was relatively small and
unknown. But the brand has exploded in popularity in recent years,
investing more in marketing and introducing a new treadmill product
as it prepares to go public this year. While it eventually removed
classes featuring songs by the popular artists in question, it has
also changed tactics, recently counter- suing the group of music
publishers, alleging anticompetitive behavior.
“Very often there’s a cavalier attitude toward licensing music,
even though music is a big part of what they’re doing,” says
Owen Sloane, partner in the entertainment, media and arts
department at law firm Eisner, noting the risks could include
complaints from brand investors.
Experts say there are several strategies marketers can employ to
avoid musical snafus—as well as the unwanted press that goes
along with them—and also get the most bang for their buck. Some
tactics could even improve brands’ use of music in their
marketing by encouraging more consumer engagement.
“Brands that incorporate a good music strategy play a role in the
consumer’s life beyond the product,” says Eric Sheinkop, author
of the book “Return of the Hustle: The Art of Marketing With
Music,” and an executive board member of SoStereo, a company that
provides sonic identities for brands.
Try a cover
Marketers that might not be able to afford the costs of securing
licenses from all of the creators involved with a song—writers,
artists—could opt for a cover version of the song instead. In
this strategy, the brand only needs to get rights from publishers
and, in some cases, from others, but covers are much cheaper
options, experts say. Brands could also personalize cover songs for
different markets—an Italian version in Italy, for example.
“It gives you the ability to localize anthems or campaigns by
doing covers,” says Sheinkop.
Experiment with shorter terms
When Budweiser aired its Super Bowl spot earlier this year, it paid
top dollar for the rights to Bob Dylan’s “Blowin’ in the
Wind” to promote its use of wind power—but those rights were
only for a limited time, compared with the typical
three-to-six-month minimums. Anheuser-Busch InBev had the Dylan
rights for two weeks before turning to a rerecorded version of the
song by the Cloves for future broadcasts. Using short-term rights
is a smart way to save money but still make a big splash, experts
Do it in stages
Some music publishers are willing to work on alternative plans for
startups short on cash, according to Sloane. He says that startups
could devise a contract with a publisher that starts with a less
expensive license, and builds to something more lucrative as the
brand becomes more successful and has more money to allocate to
music license fees. While this practice is not widespread, it could
work for marketers like Peloton, which start small and grow more
Mix it up
Some brands have found success in both avoiding lawsuits and
keeping costs low by using a mix of music sources. Zumba, the
global fitness brand based in Hallandale Beach, Florida, creates
one-third of its music in-house as exclusives; sources one-third
from lesser-known, independent artists; and licenses hits from
established, popular musicians for the last third. The formula has
worked well for the company, which can also claim it
“discovered” several musicians who went on to larger success
and recognition, such as Jenn Morel and Don Omar. Zumba works with
thousands of artists.
“The Zumba experience has many different elements,” says
AlbertoPerlman, CEO at the 18-year-old brand, noting switches from
Reggaeton to hip-hop to salsa, for example. “When we can’t find
the right song we say, ‘Let’s create one.’”
Consider tapping technology
There’s also more technology available to help marketers find the
best music mix for their brands. Sheinkop’s company SoStereo has
developed an AI tool that will create music in the vein of popular
songs already in existence.
“It’s not all or nothing,” Sheinkop says, referring to the
choice between expensive big-name artists or bland elevator music.
“There’s a lot of opportunity in-between.”
Source: FS – Advertising Blogs !
A primer for using music in marketing