The Association of Music Producers (AMP) has introduced a set of music production guidelines which is being circulated to industry professionals on both the music/sound design production and ad agency sides of the business.
The guidelines are also slated to be published in the 2001 edition of the Association of Independent Commercial Producers (AICP) Membership Directory, which will additionally contain a tabbed section with listings of music- and sound-design houses that are AMP members. AMP’s representation in the directory is an outgrowth of the strategic partnership the trade association entered into with the AICP earlier this year (SHOOT, 4/14, p. 1).
AMP’s national board devised the guidelines to serve as a useful tool for the business of creating and producing soundtracks for commercials. The guidelines propose to develop a better understanding of and a protocol for every stage of the process—from demos to bidding, from legal risks to project cancellation. AMP hopes that the guidelines will generate dialogue with agencies and advertisers, and eventually gain the stature of the AICP spot production guidelines, which have helped to define standard industry practice. At the same time, the AMP guidelines remain a work-in-progress in the sense that they will likely be updated at least annually, reflecting changes in the marketplace and feedback from the industry.
AMP developed the guidelines after a broad survey of music companies, agency producers, composers and legal counsel. While not a legal document, the guidelines serve as food for thought in terms of pinpointing areas where legal liabilities could arise. Perhaps more importantly, the guidelines themselves stress the value of planning for music and sound early on in the creative/conceptual process, or at least no later than the pre-pro stage. The guidelines recommend that music/sound design houses and music agency producers be involved in projects as early as possible. This practice can help music/sound design shops, agencies and advertisers to avoid potential legal pitfalls and liabilities.
"This [the introduction of guidelines] is a first step, but a significant one," assessed AMP president Lyle Greenfield, who also serves as president/creative director of Bang music+sound design, New York. "When AMP was formed two and a half years ago, one of the key goals we identified was to establish music guidelines that defined better business practices. Music and sound are half of the communication equation. The other half—visuals—has long had defined business principles and practices through the AICP guidelines. We felt we needed the same, to at least generate discussion about what’s important for agencies, clients and music houses in the creation and production of original music for commercials."
AMP secretary/treasurer Jan Horowitz, VP/business manager of David Horowitz Music Associates, New York, added: "The guidelines have been a priority for AMP from the beginning, because better business practices by and large foster the best creative climate. And we think that the guidelines provide a useful reference for all involved in the music process. Many agencies don’t have a music department or producer. And at times, we’ll find ourselves dealing with agency creatives who aren’t aware of the optimal way to work when it comes to music. … That’s why having agency input and feedback to the guideline drafts was so important. Getting that input and feedback was a process that began in April. Because of that, I think the guidelines can be especially helpful to agencies, addressing questions they have and defining issues that need further discussion."
One such issue involves music rights contracts and indemnity, particularly relevant in cases of alleged music copyright infringement. The AMP guidelines define the potential risk entailed, advising that "caution must be exercised in the use of existing music as ‘direction’ for companies and composers. Copyright laws apply not only to the literal notes of music compositions, but to the sound of the musical arrangement, as well. Thus there can be great risk—to the advertiser, the agency and the music company—in making something ‘sound like’ someone else’s song or soundtrack. Note that the use of published recordings without permission—even for presentation or ‘testing’ purposes—could be viewed as infringement of copyright law. Further, an ‘infringement’ claim can be based upon intent. Intent is often determined by whether a piece of music is ‘discoverable’—i.e., has been laid back to a rough cut or animatic."
This section of the AMP guidelines goes on to point out that "risk is increased significantly when an inquiry has actually been made into the availability of that song or soundtrack for use in a commercial. (If such an inquiry has been initiated with the publisher of a musical work now being cited as a musical ‘direction,’ it is prudent to notify the music company assigned to the project, and to enlist the services of a musicologist to analyze the relevant recordings.) To avoid unnecessary legal exposure, AMP recommends that discussions of direction be limited to musical styles or genres, that music professionals be included in the discussions, and that ‘needle drops’ be kept out of the presentation process (unless licensing of the recording is intended)."
Jan Horowitz acknowledged that "advertising has to reference popular culture," but she added that "often the best music and sound comes out of simply saying to a talented composer, ‘Look at this and what do you hear?’ Instead, in recent years, we not only get agency requests for a rock track, but a track from such and such a band—actually the first eight bars of such and such a track on such and such a CD. When you start getting into that area, it’s important that everyone involved understands the risks."
In that context, the AMP guidelines suggest the need for "co-indemnification in the Music Rights Agreement with respect to scripts and materials furnished by the agency." Historically the indemnification clause in such a rights agreement has placed full responsibility for the originality of the acquired work with the supplier and composer. Further, the clause has usually required that the supplier and composer, jointly or individually, "hold harmless" the agency and its client from any and all claims, judgments, legal costs, et cetera, stemming from any actions and/or claims made against the work.
Greenfield agreed that if a music house is doing "original work," it should guarantee that originality and take full responsibility. But if the agency assignment instead calls for, in essence, trying to sound like or copycat something, then fairness dictates that there be some form of legal indemnification for the music house.
As earlier reported (SHOOT, 8/13/99, p. 19), Horowitz and Elizabeth Myers—composer/ partner at Manhattan Beach, Calif.-based Trivers/Myers Music—head an AMP committee that explores indemnification and rights agreements. Horowitz hopes the committee can have meaningful discussions on these issues with the agency community. She conjectured that the AMP guidelines could perhaps serve as a catalyst for that dialogue.
The AMP guidelines also address the demo process, demo fees, payment guidelines, cancellation/postponement contingencies and composer royalties. For example, the guidelines point out the importance of an agency facilitating the collection of royalties by providing a media schedule—either to the music supplier or directly to the distributor (ASCAP, BMI, SESAC)—unless the advertiser has already done so via its own publishing company.
In terms of timely recompense for services rendered, individual companies must negotiate their own payment agreements. However, in its guidelines AMP suggests that payment be made prior to the first air date of the finished spot, but not later than 30 days following the submission of final invoices.
Another AMP guideline outlines steps in the music production schedule, allocating time for: music development/research; the creation and production of demos (also review and approval); interface with evolving edits/ visual effects; preparation for final session (pre-pro, booking studio and talent, et cetera); final record and mix; and presentation of the finished recording, as well as any adjustments to same that might be required. It is suggested that agency producers create the schedule with input from the music house.
The guidelines also break down many of the possible cost components in the music estimate, including: music development/demo, the creative/broadcast rights fee, the arranging fee, the sound design fee, the production fee, talent payment, studio charges, musicologist services, the holding fee and the cancellation/postponement contingency.
AICP president Matt Miller described the AMP guidelines as in a sense "taking a page out of what the AICP has done….The guidelines outline how the [music and sound] business functions, and should prove to be a useful resource for agencies. The AMP guidelines also reflect a position and philosophy about how that business runs—and how to get the most out of it…..It represents a very strong position for a young organization."
AMP members whose companies are represented on the association’s national board helped to create the guidelines. These contributors included: Greenfield; Horowitz; AMP/ West Coast president Dain Blair of Groove Addicts, Los Angeles; AMP/Midwest president Steve Ford of Steve Ford Music, Chicago; Jeff Rosner of New York-based Sacred Noise; Larry Geismar of North Forty Music, New York; Marc Blatte of Look/ Scuba, New York; Alan Zahn of Red House Music, New York; Andy Messenger of Montclair, N.J.-based Mess Hall; Kevin Joy of Rocket Music, New York; Nick DiMino and Jake Holmes of Three Tree Productions, New York; Mark Kehrberg of Crushing Music, New York; and Stu Kuby of JSM, New York.
AMP has made significant gains in its relatively brief existence, including playing a lead role in getting ASCAP to abolish a so-called "cap" on commercial music royalties (SHOOT, 10/16/98, p. 1), and later lobbying successfully for the election of composer Doug Wood to the ASCAP board. Wood, president of Port Washington, N.Y.-based OmniMusic, became the first member of the spot industry to win an ASCAP seat (SHOOT, 3/26/99, p. 1).
