Who does Dodge have to pay to use ‘Smoke on the Water’, and how much?
Who does Apple have to pay to use ‘School of Rock’ using ‘Smoke on the Water’ and how much?
I asked my colleague at Moses and Singer, Paul Fakler, these questions.
The song is performed in two ways in the Dodge commercial, first by the ‘engineer’, and second as what sounded to my ears as the Deep Purple recording.
As for the engineer’s version, Dodge would need to negotiate a one-off synchronization license with the owner of the publishing rights (blanket licenses such as a Harry Fox Mechanical License don’t cover use of copyrighted music in audio-visual works). These licenses can run into the tens of thousands or higher if we’re discussing, for example. The Beatles).
As for use in the commercial of what I thought was the Deep Purple version, Paul notes that we don’t know that it is Deep Purple for sure. If a sound recording is used, the owner of the recording copyright, usually the record label, would request a license. If the requested fee for a sound recording is high, the advertiser may be motivated to hire session musicians to create a soundalike recording.
What if the soundalike recording contains some element, such as a vocal (or maybe even an instrument) that is associated with an individual? Then you would consult the Bette Midler/Tom Waits line of cases discussing right of publicity (and neighboring rights).
OK, as for Apple. First, it is using a clip from the movie ‘School of Rock,’ so that presumably is licensed. While the movie company would normally obtained a sync license to use the song, it is not likely that its sync license would have given it rights that extend beyond its use in connection with the movie, In other words, the advertiser that uses a movie clip can’t get rights to the music used in a movie ‘through’ the movie. Therefore Apple would, we assume, also have to obtain a sync licence from the publishing company. As to whether Apple needs to pay Jack Black for his masterful musical performance, probably not, assuming that what we are hearing is the audio portion of the movie, and not a separately recorded version (such as sometimes is found on a movie soundtrack CD).
As another aside, use of the actors’ images in the commercial, as a matter of industry custom, was most likely granted. Maybe Jack Black will get a little extra from the movie company, for this sort of thing.