Below, in its entirety, are the recently unveiled guidelines from the Association of Music Producers. The guidelines are not a legal document, but rather are intended as a means for discussion between agencies, advertisers and music and sound design companies.
Music and sound share the importance and impact of the visual image in every broadcast communication. The Association of Music Producers has recognized the need for substantive information to aid in the creation and production process. Developed from a broad survey of music companies and agency producers, composers and legal counsel, these guidelines are intended to describe the process from start to finish. It is hoped that they will provide a useful reference to help companies and industry professionals in creating the highest quality music and sound design in a cost-effective way, with a clearer understanding of the legal responsibilities of all parties.*
Music and sound constitute the "other half" of the broadcast communication—the part that helps shape the way you think and feel about what you are viewing. To make the most compelling and creative use of this "channel to the senses" it is a good idea to begin planning and creating early—ideally not later than the pre-production stage.
If an agency music producer is not available to attend a pre-production meeting, a music company representative should attend. This can help to establish direction from the beginning, and avoid "scrambling for ideas" at the postproduction stage, when finish dates need to be met and budgets have already been allocated.
It is common practice to "demo" music and sound design ideas prior to going to a "final" recording. Because the creation and recording of music is a labor and cost-intensive art, it is important to allocate the time and resources necessary to develop and produce it. For demos this includes budgeting for production and talent costs as well as creative compensation (the "demo fee").
Note that the "demo fee" may not cover the cost of revisions, which should be budgeted separately. Further, the demo fee does not constitute a "Holding Fee," or "Test Fee," which are uses of a selected composition for which fair compensation should be agreed upon in advance, as well as a reasonable duration for the "hold."
During the demo process music houses and composers may provide musical or lyric ideas which may substantially impact the tonality or character of the project. The use of such creative contributions when the job is not awarded to that company/composer is a potential misappropriation of the intellectual property of that company, for which compensation may be required. This is a consideration when moving forward from the demo stage to avoid misunderstanding and legal risk.
When sharing ideas for commercial scores or songs, agency creatives and producers will often refer to something existing in the popular culture—a song on the radio, a film soundtrack, a new CD (or old record). Getting input from prospective houses and composers at this stage is a good way to expand the initial thinking, open the door to new ideas, and get a sense of who might best understand what will be needed for the project.
Understanding the risk: 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 to 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.
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, the Association of Music Producers 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).
#5
It used to be that a film score was created after the film had been edited. But in the era of the music video, when sound "drives" picture as never before, editors frequently prefer cutting to the track—having the rhythm and tempo as a "guide." This is another important reason to begin developing musical ideas early in the creative/production process, providing the editor with what he or she will need (while avoiding the legal exposures described above).
The music production schedule is part of the overall production calendar. It should allocate time for: music development/research; the creation and production of demos (also review and approval); interface with evolving edits/visual efx; preparation for "final" session (pre-pro, booking studio & talent, music copying, etc.); final record & mix, elements to film mix; and presentation of the finished recording and any adjustments to same that might be required.
It is suggested that agency producers create the schedule with input from the music company.
The Music Rights Agreement is a widely used, variously worded document or Contract, signed by the "Supplier" (music company) along with the Composer(s) and the Agency (on behalf of itself and its Client). In general, the document constitutes a complex "Purchase Agreement" which assigns Rights to ownership of the music composition (the "Work for Hire") to the Client, in exchange for a previously agreed-upon sum of money, to be paid to the Supplier. The Rights Agreement may define the acquisition by use (radio, television, etc.), by duration of use (i.e., one year, two years, in "perpetuity"), or by geographical definition (U.S. Rights only, Foreign use only, Worldwide, etc.).
Music companies and composers are encouraged to review Rights Agreements carefully.
Not every music project will fall precisely within the parameters of every Agreement (a document which may have been drafted a decade or more ago), and may require discussion, questions and negotiation of specific terms.
Every Music Rights Agreement contains a variation on the "Indemnification Clause." Historically, this clause has placed full responsibility for the originality of the acquired Work with the Supplier and Composer, and has usually required that they, jointly or individually, "hold harmless" the Agency and its Client from "any and all claims, judgments, legal costs," etc. arising from any and all actions and/or claims made against said Work.
In the current litigious climate a "Claim" may be made against a Work—even frivolously—with the knowledge that the Agency may choose to "settle" in order to avoid the involvement or embarrassment of its Client. The Association of Music Producers recognizes the need for co-indemnification in the Rights Agreement with respect to scripts and materials furnished by the Agency.
Under certain circumstances (such as those outlined in #4 above) the Association also recommends that, prior to broadcast, (1) the services of a Musicologist be employed, at the Agency’s expense, to determine the likelihood of legal risk, and (2) the indemnification clause not be executed until such time as all parties to the Agreement agree that risk is unlikely.
Composers and Publishers of original music for radio and television commercials (songs, underscores, etc.) have a legal right to receive "writer’s royalties," which are paid by networks and individual stations into funds governed by three principle "distribution" bodies—ASCAP, BMI and SESAC. Many major advertisers maintain their own publishing companies for the purpose of collecting the Publisher’s portion of these royalties (Proctor & Gamble, Kraft General Foods, Coca Cola USA, for example).
For individual composers, collection of these writer’s royalties depends on accurate reporting—the submission of broadcast schedules to the royalty distributors.
Until the day when watermarking or some other form of electronic "surveillance" makes it simple to identify the broadcast use of any commercial, Agencies are urged to facilitate the collection of composer 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.
Because the creation and production of music and sound design is a cost intensive art, prompt payment to the music company for services rendered is essential. While individual companies must negotiate their own payment agreements, the Association of Music Producers 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.
Cancellation/
In recording studios nationwide, it is general practice that cancellation of a session within 48 hours of the start time incurs a charge, at the studio’s hourly rate. The talent unions (musicians and singers) have the same conventions for cancellations within 24 hours. (For bookings, cancellation and postponement have the same meaning.)
With regard to commissioned projects, the music company is entitled to compensation in the event of a cancellation. Prior to the "final" recording session of an agency-approved project, a majority of the "work" has generally been completed, including composition, arranging, score to final picture, music copying, etc., in addition to the booking of studio and talent. Thus, reasonable compensation to the music company for such cancellation—covering arranging and production fees, plus studio time booked—must be made in good faith.
The estimate should identify, with as much specificity as possible, the cost components of the particular project. These may include—but not be limited to—such items as:
Creative Submission Fee—covers creative work. Additional production costs: singer & musician payment, materials, shipping, and allowance for revisions as needed.
Purchase of rights to a composition for specified media use. (Other uses, such as focus group testing, on-air test, convention, in-flight and internet, may require a separate fee structure.)
For the unique arrangement of a composition as scored to picture or script.
In addition to the above as applicable.
Applies to any additional sessions required for sweetening, re-sings, "lifts", edits, etc.
Projected session costs for musicians & singers (see union tables for standard wages—note any over scale talent being engaged) instrument cartage, music copyist, scale arranging & orchestration, health & welfare contributions.
Note: Agency budget may require payroll taxes for talent, and may include calculation of foreign and domestic residual payments.
Pre-production, record/mix/ edit/duplication time charges, engineer fees, instrument rentals, ISDN or Web Posting, materials (tape or disc masters, dubs, etc.) shipping, messengers, sales tax as applicable.
Contingency for professional music/sound analysis as needed.
Contingency to reserve exclusive rights (to a composition submitted as a demo) with option to buy within 6 months (or other specified time.)
Arranging work, talent and studio fees as applicable (within 48 hours of scheduled "final" recording.)
Work should proceed only with a "signed-off" budget for each phase of work, and purchase orders to define the scope of the project.
*These Guidelines are not intended as a legal document, rather as a working tool to be used at the industry’s discretion.e
