To hear music company executives and agency music producers tell it, the everyday practice of putting temporary music on a commercial in production is something akin to putting a "Kick me" sign on your back. Only in this case, the sign might say, "Sue me."
The music people closest to the process are well aware of the legal risks inherent with temp tracks, and the music companies, that become targets of litigation if their work too closely resembles an unlicensed temp track, have been leading the campaign to raise broader awareness of the issue (SHOOT, 9/4, p. 1). But they say it’s not easy to keep editors from adding unauthorized temp tracks to the spots they’re cutting, and it’s hard to rein in creatives and account people at the agency who want to present spots—enhanced with music they’ll never be able to buy—to clients for their approvals.
According to the Association of Music Producers (AMP), Ogilvy & Mather (O&M), New York, and Grey, New York, are two of the major agencies that have formal policies in place that prohibit anyone from sending a spot to a client with a music track that is not already legally nailed down. Ad agencies, in general, are reluctant to discuss business policies publicly, but music producers at several agencies say they strive to keep temp tracks bottled up in the editing suites. That’s often an uphill battle, and it’s the primary reason that AMP hosted a seminar—Temp Tracks: Understanding the Legal and Financial Risks—last month (10/29) in New York.
AMP president Jeff Rosner, executive producer of Sacred Noise, New York, says agencies are aware of the risk of being sued for improper use of temp tracks, but they are still naive about the problem. "Agencies are careful about it," Rosner says, "and they always think that if they get away with just a couple lawsuits a year, they’re doing OK. But they don’t realize the depth or magnitude of how many cases actually are brought, because every time a case is settled, one of the stipulations is you can’t talk about it [because settlement agreements often contain nondisclosure agreements]."
Agency music producers are, in a sense, partnered with the music houses in the effort to curb the use of temp tracks, but Rosner says they can’t fully control the problem. "In the last five years," he says, "with the incredible amount of licensing that goes down, using a temp track the way you used to isn’t the same issue because everybody thinks you can always buy it."
The red flag goes up when the agency tries to buy the tune being used and finds that it isn’t available or isn’t affordable. Publishers then pay particular attention to whatever music winds up on the spot. "The publishers are really aware of this process because they are the ones who are peppering the agencies with CDs every week," Rosner continues. "If music comes out [in a spot] like something that just broke on the airwaves, they say, ‘All right, there’s a trial here.’ We’ve alerted the people who sue us, and we’re doing business with them on a day-to-day basis."
Rosner would like to see more agencies adopt policies like that at O&M and Grey, and he hopes broadcast production executives, agency lawyers and business-side executives attending AMP’s seminar will get the message that temp tracks shouldn’t leave the edit suite. "There is no control at the agencies," he says. "We feel if the lawyers and business people get wind of how pervasive this is and how many lawsuits have gone down, even if their agencies aren’t feeling the heat, they’ll realize this isn’t a great practice. If publishers realize that agencies aren’t doing this anymore, it becomes a different ballgame."
Agency music producers acknowledge Rosner’s point that production and business executives need to be made aware of how big the temp track problem is, but they differ with his observation that control over the process is totally lacking.
Young & Rubicam (Y&R), New York, which hosted the seminar at its offices, does not have a formal policy on temp tracks, but Peter Greco, senior partner/executive music producer at the agency, says he monitors the way music is used in spots. "One of the reasons agency music producers are here is that we are meant to police that and be gate keepers," he says. "I’ve shut down a couple of music sessions myself because I had reached an impasse with the creatives who were pushing the music closer to the temp track. I have the power and authority to do that."
Greco jokes that the Y&R policy is, "Don’t do anything that would instigate a lawsuit," but he likes the O&M guidelines. "They say, ‘No temp tracks leave the agency.’ That’s a remarkably smart and effective way of doing it. It puts the temp track back in the drawer. The longer it exists on a rough cut somewhere, the harder it is to get away from it."
At Leo Burnett USA, Chicago, head of music Ira Antelis says, in effect, that Burnett has a policy like Ogilvy’s, but that it isn’t formally written out. "There is no way here that a client will hear a spot with a piece of music, like a pop song, that they have not bought," Antelis says. "There is no videotape going to clients with music that has not been bought."
Beyond that, Antelis says producers at the agency know to not use unauthorized music even on rough cuts. "If people like a piece of music and want to play that for the editor and let the editor discreetly cut to it, that’s one thing," explains Antelis. "But that piece of music cannot be played anywhere else. The minute you put the music on a three-quarter-inch tape and play it for anybody else and you don’t buy that piece of music, then you’ve got a problem. Then everything is traceable."
The approach is a little more flexible at Saatchi & Saatchi, New York, where Eric Korte, VP/music director, says he draws on his 18 years in the business to deal with situations on a case-by-case basis. "We don’t need to have a strict policy," he says. "We just take each case as it comes across my desk. Just the other day, I convinced an account person not to make a call to find out the price of a piece of music because of the red flag syndrome. In most cases, I have a good sense of whether that music is available at a reasonable price. In which case, they can go ahead and show it to the client, understanding that we don’t own it yet."
Korte says he is finding that in the last six months or so, when he sends music houses a rough cut for scoring, they request that it not have a temp track on it. "That doesn’t mean they don’t want to know what [the temp track] is or discuss it, and understand the direction, they just don’t physically want that evidence. So far I haven’t run across a case where it is that big a deal. It doesn’t keep us from discussing the piece of music. That kind of thing helps the creatives understand that this really is an issue we have to be responsible about."
Agency music producers say it’s important to make creatives and account people at the agency more aware of the temp track issue. "It’s a little hard to get people here real wide-eyed about it because we haven’t had to deal with any lawsuits," Korte says. "I’m surprised sometimes at things that I take for granted that people understand, that they don’t really understand, like what’s in the public domain and what’s not, and what this whole business really entails."
Josh Rabinowitz, associate partner/music producer at Y&R is surprised about how little people know about the issue. "It’s not ignorance as much as innocence," he says. "They’re not fully aware of the ramifications. People are not fully educated on this. It’s been the way the business has been done for so long."
Rabinowitz says he always argues against putting any temp tracks on spots that are presented to clients. "That’s not to say it never happens, because I’m not always around," he notes. "I dissuade the editors as well. The problem is some editors themselves are associated with music companies. Some claim to be composers. I’ve had several cases where I’ve engaged a music company and the editor will put something on there and play it for people when I’m not around, and people fall in love with it and play it for a client, and then I’m screwed. I have a relationship that is put in jeopardy." Rabinowitz would like to see music houses involved in the process earlier so they could provide at lease a demo track to the editor. "Ideally, that’s the best scenario," he says. "Everything should be cut to a piece of music that everyone likes."
Antelis also argues for early music house involvement. "In a perfect world, if [a music house] has an idea of what the music should be like, have the music company do a scratch track before the commercial is edited," he says. "It will take all of two or three hours. It’s not that complicated. The sooner the music is sketched out, the easier it makes life. If there is no music sketched out, you can take a piece of needle-drop music, which I would clearly recommend. For two hundred dollars you can buy a piece of music to put on your video as you’re cutting, as opposed to putting the soundtrack of Braveheart on it. There’s enough good music in any style, you can find something decent enough to cut to."
Not surprisingly, AMP’s Rosner endorses early music house participation. "Lead time is a wonderful luxury," he says, "but ninety percent of the music companies out there would love a short lead time if they had a chance to get in before the temp track is added. I don’t care if it’s not approved or it’s thirty-five seconds long, just give me a shot at writing something before you play it for your client. If it changes, I’ll adapt my music to it. I’d much rather have that situation, where I’m changing music that everyone likes that’s original, than try to do a piece of music like another piece of music and dance around the line between originality and mimicry. All of a sudden you find yourself doing something you don’t really enjoy doing."
