Music production guidelines
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 under- standing of the legal responsibilities of all parties.
These Guidelines are not intended as a legal document, but rather as a working tool to be used at the music company’s discretion. Consultation with an attorney experienced in such matters is recommended prior to entering into any contractual relationship.
1. Timing: It is a good idea to begin planning and creating early – ideally not later than the pre- production stage.
If an agency music producer, a music house producer or a composer is available to attend the pre- production meeting, this can help establish direction from the beginning, and avoid “scrambling for ideas” at the post-production stage, when deadlines need to be met and budgets have already been allocated.
2. The Spec Sheet. AMP has created a Spec Sheet which clearly outlines a project, and what elements/timelines and costs have been agreed upon. This Spec Sheet is available in the “Members Only” section at the AMP website, http://www.ampnow.com. Only current members of AMP are allowed access to this and other proprietary materials. All music companies are encouraged to complete the Spec Sheet, and forward to the agency music producer and/or agency producer at the start of each job. In addition to all pertinent information, the sheet also includes links to union wage scales. The Spec Sheet will help organize most of the following music production/cost considerations:
- Music Development/Demo: Creative/Arranging Fee Production costs for the actual session (studio rental, engineers’ fee, materials, shipping, and any necessary revisions). Singer(s) & Musician(s) fees.
- Creative Fee (aka Broadcast or Air Rights Fee): Purchase of rights to a composition for specified media use, when negotiated in a “work for hire” context.
- Licensing Fee: Purchase of permission to use the music or sound in conjunction with a specific production for a period of time in a certain medium or media.
- Arranging Fee: For the unique arrangement of a composition as scored to picture or script.
- Sound Design Fee: In addition to the above as applicable.
- Production Fee: Applies to any additional sessions required for sweetening, re-sings, “lifts,” edits, etc. The production fee is, essentially, what the agency (or client) pays the producer for: Coordina- tion of the job, development of schedules and deadlines, negotiations with talent, streamlined communication, and legal and financial management. These services are not hidden within other line items.
- Talent Payments: Projected session costs for musicians & singers (see union tables for standard wages – make a note of any over scale talent being engaged) instrument cartage, music copyist, scale arranging & orchestration, and health & welfare contributions. Note: Agency budget may require payroll handling and talent tax, and may include calculation of domestic and/or foreign residual payments, or any “new use” payments for lifts into future media. Note that ideally licensed works should also have talent payment contracts attached to them, even if the original session was produced for another medium, such as a record (CD) release whether analog or digital.
- Studio: Pre-production, record/mix/edit/duplication time charges, engineer fees, instrument rentals, Web Posting (including the multiple music-to-picture versions), materials, shipping, messengers, sales tax as applicable.
- Musicologist: Contingency for professional music/sound analysis as needed.
- Holding Fee: Contingency to reserve exclusive rights (to a composition submitted as a demo) with option to buy within 6 months (or other specified time.)
- Cancellation/Kill Fee Contingency: These fees apply to work already completed or sessions already booked, and include composing and/or arranging fees talent and studio costs. Cost to cancel a job in progress will be based on out of pocket expenses incurred by the music company and should be negotiated at the time of cancellation.
- Note: Work should proceed only with a “signed-off ” budget for each phase of work, and purchase orders to define the scope of the project. (Some agencies don’t have actual P.O.s and they may just issue a P.O.number, or a job number instead.)
3. Demos and Music Development. It is common practice to “demo” music and sound design ideas prior to going to a “final” recording. 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 (the “demo fee”).
Note that the “demo fee” usually does not cover the cost of revisions, which should be budgeted separately or absorbed in the final budget for air.
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.” Off-air tests should be more than a standard demo fee, and on air tests can be anywhere from half to the entire amount of a final, depending on how long and where it is going to be tested. Note: These costs can also be anticipated and budgeted for on the Spec Sheet (above).
4. Appropriation of Creative Contribution. 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.
5. Musical Direction. 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 a preliminary stage is one 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. If it can be avoided, it is not advised to use other copyrighted material as a “model” for patterning of creative content. Understanding the risk: Caution must be exercised in the use of existing music as “direction” for companies and composers. Copyright extends not only to the literal notes of music compositions, but possibly to the style of the musical arrangement, harmony and the lyrics, as well as where such style, harmony and lyrics are substantially similar to the original. 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 musical recordings without permission—even for presentation or “testing” purposes—could be viewed as infringement of copyright. To prevent unnecessary legal exposure, and to encourage the respectful environment necessary for creative collaboration, 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 library tracks be clearly defined as such when included in the presentation process (unless licensing of the composition is intended).
6. The Temp Track: Music To Cut To. Editors frequently prefer cutting to an existing piece of music—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).
7. Music Production Schedule. 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 & approval)
- Revisions for edit changes and/or sweetening with musical FX
- Preparation for “final” session (pre-pro, booking studio & talent, orchestration, music copying, etc.)
- Final record & mix, elements to film mix
- Presentation of the finished recording and any adjustments to same that might be required. Note: It is suggested that agency producers create the schedule with input from the music company.
8. Music Rights. The Music Rights Agreement (MRA) is a widely-used, variously-worded contract, signed by the “Supplier” (Music Company and/or 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, or provides for a license of Rights to use the music composition for specific periods and specific purposes, in exchange for a previously agreed-upon sum of money, to be paid to the Supplier. The MRA, in the form of a license, may limit the scope of use by media (TV, Internet, etc.), by duration of use (i.e., one year, two years, in “perpetuity”), or by territory (U.S. only, International only, Worldwide, etc.). Music companies and composers are encouraged to review MRAs carefully before the job, especially if it is a new client. Not every music project will fall precisely within the parameters of every Agreement, and may require discussion, questions, and negotiation of specific terms.
Note that AMP has created its own MRA which can be found in the Member Section of the websitehttp://www.ampnow.com .
9. Rights & Indemnification. Every MRA 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 musical 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.
Under certain circumstances (such as when a specific track from the outside has been referenced as outlined in #5 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. Allocation of risk among agency, advertiser and music company is advisable.
In addition, when an agency requests stripes, splits, or stems (separate tracks of the music) for the final mix, the music company should no longer indemnify the agency or client. Splits or stems can change the nature of the music, often without the composer present, and therefore create too much of an indemnity risk . If splits or stems are used, AMP suggests sending the final mix to a musicologist once again at the agency’s expense.
10. Composer Royalties. Owners of rights to original music used for radio and television commercials (songs, underscores, etc.) have a legal right to receive “writer’s royalties,” which are paid by users of the music into funds governed by three performing rights societies —ASCAP, BMI and SESAC. For music production companies, collection of these writers’ royalties may include submitting a copy of the MRA (BMI only), a copy of the music, and Competitrack ad codes. It is important to get the final title that was slated for the commercial for this purpose. For individual composers, check with the agencies or the music production companies to make sure one or the other has filed for the writers’ royalties. The composer in almost all cases is entitled to the writer’s royalties, regardless of whether the music was purchased outright as a work-for-hire or was licensed. If the music was licensed, the music company or composer’s publishing company is able to also collect the publisher royalties which, in the case of a work-for-hire, generally would be collected by the agency’s own publishing company.
Agencies are urged to facilitate the collection of such royalties by providing requested information and final copies when requested by the composer to file with (ASCAP, BMI, SESAC)–unless the agency or advertiser has already done so via its own publishing company.
11. Payment Guidelines. Upon awarding of the job, it is common to invoice the first 50% of the job. Additional 25% can be invoiced if the period of time between awarding and completion is significant. Upon completion of the final project, the remaining 50% (or 25% as the case may be) should be invoiced. While individual companies must negotiate their own payment terms and agreements, the Association of Music Producers understands that it is industry custom and usage for payment to be made prior to the first air date of the finished spot, but not later than 30 days following the submission of final invoices.