Anew insurance policy designed to offer a measure of protection from copyright infringement lawsuits may turn out to be a catalyst that helps change some of the ways agencies and composers work together to create music and sound design tracks for spots.
The errors and omissions (E&O) insurance policy unveiled late last month (SHOOT, 7/27, p. 1) is designed to cover music houses, and by extension agencies and clients, against legal action. But some of the policy’s terms also offer real-world cause to follow music production guidelines introduced last year by the Association of Music Producers (AMP). Although the policy is in the process of being distributed to the advertising community at large, preliminary response from agency execs canvassed by SHOOT has been favorable.
The policy, which was worked out by AMP, the Association of Independent Commercial Producers (AICP), bicoastal insurance broker Taylor & Taylor and underwriter Entertainment Brokers International (EBI), addresses concerns related to music copyright infringement, indemnification and potential litigation issues. The insurance not only offers indemnification, but also promotes business practices that could reduce the chances of copyright infringement from occurring. The new insurance allows a music house to indemnify the client and/or agency; however, there are several exclusions—circumstances under which the policy doesn’t apply. For example, the policy does not cover claims: (1) when the client and/or ad agency has used, imparted or supplied to the music producer a commercial with a temp track and/or any copyrighted material, without permission from the copyright owner; or (2) when the client and/or agency demands or implies that the music producer compose and/or produce music substantially similar to any music owned and/or composed by any third party.
To national AMP president Lyle Greenfield, the exclusions "represent a truth about the current business practices that we’d like to see changed or adjusted."
Greenfield, who is also president/creative director at Bang Music, New York, says agency people who aren’t music production specialists often find themselves in situations where the creative group or client has fallen in love with a certain musical direction that’s hard to describe.
"They may not know how to do anything other than say, ‘Well, make it sound more like this or that’ [sounds]," he explains. "That is a specific instance where we are saying, ‘Look, we can’t indemnify you, and our insurance policy won’t protect you in a situation like that.’ In effect, they’re asking us to come perilously close to what would result in a claim in an infringement case. We’ve all kind of known this instinctively, but have never had an appropriate way to speak the words as an industry."
If those words are, indeed, spoken through the new policy, music pros on the agency side have little problem with that message. Ira Antelis, head of music production at Leo Burnett USA, Chicago, says the policy is a "great effort," and that it will have a degree of success in changing the creative practices in question. "But you’re still going to have those people, no matter what, who want a certain kind of music, and they will find a way to say, ‘This is what I want.’ Whatever the flavor of the month is, people will call and say, ‘Can you do something like this?’ " Antelis points out. "Music houses have relationships with people, and if I have a relationship or friendship with somebody and they come to me and say, ‘Look, I can’t tell anybody, but I’d like to do something like the new Limp Bizkit record,’ I’m not going to end the relationship."
This response is especially notable in the current business environment, Antelis adds. "In reality," he comments, "if I’m a composer and my biggest client comes to me and says, ‘I really like this piece of music; I really want to do something like it,’ I’m not going to say, ‘I can’t hear it because my insurance policy would be invalid; go someplace else.’ There aren’t a lot of people who would say, ‘I’m going to stand on principle even if I lose the job because of it.’ "
Enlightenment
Peter Greco, senior partner/executive music producer at Young & Rubicam (Y&R), New York, is happy to see the policy raise awareness of risk in some of the ways that commercial music is created. "It’s been a long time coming," he observes. "I think everybody in music production is familiar with the overall situation and the ways it impacts music houses and then ultimately comes back and affects the agency. I think what this ultimately will do is heighten the awareness on the agency side that the music houses have been put at risk for a long time and, frankly, they’re not going to stand for it anymore. I think that’s good news for everybody."
The new policy will force people to be more careful, suggests Greco. "My hope is that it will genuinely change the way the entire industry approaches cutting a commercial," he states. "I think it will make people a lot more aware of the potential legal dangers of working with material they do not own."
Mike Boris, VP/executive music producer at Bates USA, New York, says the policy is, "absolutely," a good thing for music houses to have. "It’s beneficial for a company to have, because one lawsuit could drive a small company out of business, whether they win or lose," relates Boris. "As any musicologist will tell you, it’s always better to avoid a lawsuit than to win a lawsuit. If having this insurance policy is a little bit of weight behind them to avoid a lawsuit, that’s great."
One of the reasons composers and clients refer to existing music in the quest for new music, and a reason it will be difficult to change that practice, is the simple fact that it’s difficult to put musical ideas into words, observes Diane Jackson, VP/ executive producer at DDB Chicago. "When you’re working with a director and dealing with visual images, people can find words to fit those images more easily than they can with sounds and music," she says. "That’s why people use temp tracks to illustrate something they’re trying to find."
Looking at the wording of the exclusions, Greenfield points out that they may not be as limiting as some think. "To me, you can still talk about artists in the plural, you can name several artists," he notes. "If you talk about a specific track from a specific album, it becomes a little more perilous."
Greco also suggests that the exclusions aren’t quite as restricting as they seem. He says you can ask for a sound that recalls 1950s rock ‘n’ roll, but you can’t ask for a ripoff of Maybellene. "You can’t copyright the sound of ’50s rock ‘n’ roll or ’90s grunge," he says. "That’s a genre. That’s a sound. No artist lays claim to that. You can’t say, ‘I want it to sound like "Let It Be" by the Beatles,’ but you can’t eliminate talking about genres as it relates to artists who have worked in that genre."
Antelis endorses that approach: "If you can say, ‘I would love to be in the territory of the Beatles, sort of where they were in the Sgt. Pepper’s Lonely Hearts Club [period],’ without talking about a specific song, then I think they’ve got something."
If talking about songs is a practice that is hard to eliminate, delivering rough cuts to music houses without a temp music track would seem to be a snap. But Boris says that too, might be an area where change is hard to implement. "A lot of composers want to hear something," he explains. "They want to hear a general direction. A lot of times the creative [team] will want some sort of musical template behind them to inspire them. They’ll even present a board to a client with music in the background, even if they’re just reading it, just to set a tone."
But he and others have no problem with eliminating the temp track before a rough cut goes over to the music house. Boris recalls occasional creative problems with temp tracks. "I’ve worked with composers to whom I’ve given a needle drop or a scratch track on a piece of film, and it’s come back and sounded just too close," he recounts. "Where’s the creativity in that? I don’t feel that I’ve done my job or the composer’s done his job. At that point, I’ll pull the job and move on to someone else."
Greco says he would like working with music houses that buy the policy and stick to its terms. "Ultimately it protects the agency, but it also shows integrity on my part," he states. "They’re there to provide what they went into business for: original music."
Greco hopes it will lead to closer involvement for composers in the creative process. "It’s going to take a while for everybody to sort of feel out this process," he notes. "It will be difficult footing for a while, but the end result benefits everybody."
Antelis points out that even if the creatives don’t have music ideas, the editors send over a piece of music to the music company. "Editors have become very involved in choosing music now," says Antelis. "Personally, I think it would be great to get away from it. The chances for really unleashing what people can do would be greatly improved if we would allow the people we’re hiring to do what they do."
