The IPA and the Musicians’ Union have agreed an updated form of agreement between an ad agency and musicians retained to record music for TV, radio and cinema advertising. Carla Basso segues into the new bits and the key provisions.
Topic: Music
Who: IPA and Musicians Union
Where:UK
When: Summer 2007
Law stated as at: 1 September 2007
What happened:
The IPA has agreed a new "Recorded Advertising Music Agreement" with the Musicians' Union. The agreement sets out the terms which apply to musicians who are employed to record music for television, radio and cinema advertising purposes. The agreement also provides for optional procedure for clearing performer's rights where existing recordings (made under other agreements) are incorporated into advertisements.
The agreement will apply from 1st September 2007, and largely remains unchanged from the earlier version which has been used over the last three years. However, a new clause 3 is introduced (as an alternative to clauses 1 and 2) enabling a total buy out of rights. This was apparently designed to make UK orchestras more competitive with their Eastern European counterparts.
To recap, clauses 1 and 2 provide as follows:
- Clause 1.1 (Recording sessions and fees) -the basic sessions for recording music for advertising for broadcast and/or exhibition purposes (on any TV channels and services worldwide irrespective of the delivery and reception systems) are categorised into 4 types, with differing applicable fees. In each case, the fees paid to the musicians (which are specified in detail in the agreement depending on the number of musicians involved in the recording, and the medium in which the recording will be used) will secure worldwide rights:
- A maximum of one hour – during which 3 minutes of music may be recorded for not more that 2 products and/or services. "Products" in this context may include different members of the same "brand family" using the same music track. Additional fees are payable for overtime; if a production version is to be recorded; or if the resulting track is subsequently incorporated into a music production CD.
- A maximum of one and a half hours – during which 3 ½ minutes of music may be recorded for not more that 2 products and/or services. No overtime is permitted.
- Two hours – during which 4 minutes of music may be recorded for not more that 2 products and/or services. No overtime is permitted.
- Three hours – during which 9 minutes of music may be recorded for not more that 6 products and/or services No overtime is permitted.
In all cases the music recorded is to be used only for the products or services to be advertised, or for a series of films produced to advertise the same products or services. The music is not to be used for any other service.
- Clause 1.2 (Further use in other media). If rights were originally acquired in one medium only, then additional payments become due if the music is then to be used in other media, calculated as a percentage of the basic session fee.
- Clause 2 (ancillary use). Additional fees are payable for the use of the commercial (incorporating the music from a recording session) in any other medium. Ancillary use would include media such as point of sale, trade fares, phone-lines, DVDs for direct mail or sale, transport, sports stadia, and new technology such as the Internet or kiosks. For worldwide ancillary use, additional fees are payable for each 3 minutes of music, calculated according to the number of musicians and the usage proposed (which varies for each individual proposed use, or combined uses).
- For all sessions (other than those recorded under clause 3 below), the life of the recording is limited to 3 years from the date of its first transmission/exhibition. It can be relicensed after expiry for a renewal session fee (based on the one hour session rate).
- New clause 3 (Branded Communication) – as an alternative to clauses 1 and 2, a producer may now opt to acquire all relevant rights in all media, worldwide in perpetuity. Payment of the fee will allow unlimited use of the recording in any form of branded communication covering all brands controlled by the Advertising Holding Company/Advertising Agency, but excluding any use by third parties. Unlimited versions/edits/cut downs of one musical work may be recorded within the recording session. The fees vary according to the number of musicians, and the length of the session. A percentage uplift is payable to acquire commercial audio rights, based on the prevailing BPI/MU Agreement, which only apply if they are paid for at the time of the engagement.
- The agreement also provides for a musicians entitlement to breaks during recording; rights of musicians to overdub their performance (subject to additional fees); additional fees payable to musicians who are required to perform on 2nd and 3rd instruments; and the fees payable for fares and porterage of musicians and their instruments.
- The agreement also provides that where a person is employed to act the part of a musician for only the visual part of a film (a "dummy session") a musician should be employed for that dummy work (unless the action requires a special character to appear), and a fee payable to the musician.
- Instruments and devices incorporating pre-recorded sounds or producing sounds by electronic means must not be used to replace or reduce the employment of conventional instrumentalists in circumstances where these may reasonably be expected to be used. However such devices may be used to produce sounds that can't be produced by conventional instruments.
- Payment must be made in respect of the sessions to the Union Approved Contractor within 28 days of valid invoice, subject to the final session taking place.
Why this matters:
As the IPA themselves state "this will mark a useful addition to current arrangements for those people who want to record orchestras, buy musicians' performances across the world, or run a recording across an advertiser's entire product range at no extra cost". The new clause 3 buy out option will be welcomed by UK advertisers, and not least, by UK musicians.
Carla Basso
Associate
Osborne Clarke, London
carla.basso@osborneclarke.com
