Scheduled for later this month in New York, a seminar featuring leading musicologists underscores the value and importance of industry trade groups such as the Association of Music Producers (AMP). The session is being organized by AMP as a means to help address the growing number of copyright infringement claims by record labels and publishers against music in commercials (SHOOT, 10/4, p. 1).
AMP president Jeff Rosner, executive producer of Sacred Noise, New York, explained that musicologists have a bird’s-eye view of the business, particularly pertaining to industry practices, infringement claims and legal liabilities. This perspective, observed Rosner, is invaluable, especially since claims often are settled out of court, with those settlements stipulating that the parties involved not speak publicly about individual cases. Musicologists, said Rosner, can at least shed light on the matter, providing a viable handle on the general state of affairs and what can be done to improve the situation.
Clearly, musicologists advise caution regarding industry use of temp tracks, which can open up legal exposure for agencies, clients and music houses, if not others as well. This caveat is also articulated in AMP’s set of music production guidelines, which was released nearly two years ago (SHOOT, 10/27/00, p. 1) and published in the Association of Independent Commercial Producers (AICP) Membership Directory. The guidelines contain a section specifically addressing alleged music copyright infringement. That section defines the potential risk entailed, noting 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 of ‘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)."
AMP wants to raise awareness of not only potential liabilities but also those industry practices that promote such liabilities. In this vein, the musicologists’ session is AMP’s latest educational effort. AMP hopes that the session will generate meaningful turnout from the agency community—specifically heads of production, broadcast business affairs managers and in-house legal counsel—as well as lead members of the Association of National Advertisers, the American Association of Advertising Agencies and the Association of Independent Commercial Editors.
The musicologists’ seminar is slated for Tuesday morning, Oct. 29. At press time, the exact start time and the New York venue for the event were in the process of being finalized. Tentative plans call for similar sessions to take place in Chicago and Los Angeles in the coming months.
