"Famous Last Words"

Strategies to Get Paid - Part 2 (January 2004)

Dear Jim,

I'm a freelance composer who was hired to create original soundtrack music for a game that was cancelled at the beta milestone.

I never received a contract from the publisher or the developer. But I was paid one-third of my fee directly by the publisher, and have an email trail from the publisher confirming the deal for the music.

During the time I was working on the project, I had a producer at the developer who was my main contact. He was happy with the work I did.

Since the game was cancelled, I can't get the publisher to return a phone call. My invoice for the balance of the fee is unpaid. The developer is sympathetic but hasn't done anything to help.

I completed my part, and the music was even integrated into the game.

What can I do?

Signed,
Unpaid Talent

Dear Unpaid:

Last month we talked about using small claims court as an inexpensive forum to get a judgment for all or a portion of the amount due for your music.

This is a drastic step that I would recommend in good conscience only when all efforts to communicate and resolve the dispute have been rebuffed.

A second strategy, which can be undertaken simultaneously, is to reassert your ownership claim to the copyright in your original music.

Does the email trail setting forth the terms of your commission provide for ownership of the music? If it is a typical games industry agreement, the publisher expected to acquire rights as a "work-for-hire." This would mean all rights were transferred, you as the composer would lose all interest in your music, and for purposes of copyright law, the publisher, as employer-for-hire, would be regarded as the author.

If email between you is silent as to ownership, the music is not work-for-hire. Unless you are an employee of the publisher, there must be a writing setting forth the work-for-hire status of the music. Without such a writing, copyright vests in the creator of a work from the moment it is fixed in a tangible form of expression. Sheet music or your own demo recording are tangible forms of expression. And you appear to be the creator of the work.

If you own the music, register your copyright with the United States Copyright Office using form PA available online at http://www.loc.gov/copyright/forms/. If you have delivered a recording of the music, you can register the sound recording using form SR (available at the same site) that would cover both the recording and underlying musical compositions.

If your email trail sets forth the music as "work-for-hire," the task of recapturing ownership becomes more complicated. Assistance from a lawyer who has intellectual property experience is a good idea.

Your lawyer might send a letter to the publisher advising that in failing to pay you after you had fully performed, it is in material breach of the agreement.

One of the standards of a material breach is failure of a party to perform a contract term that is an essential element of the agreement. You may consider that being paid after full delivery of your work meets that standard.

One remedy for a material breach is cancellation of a contract. Your letter might state that the publisher is in material breach; and unless you are paid within (some number of days) the agreement will be cancelled and all rights revert to you. While reserving all your rights and remedies, in canceling the contract, the work-for-hire status of the music may be overridden and you can proceed to register the music in your name as composer with the copyright office.

The other side may disagree with this analysis and may well let you know. However, at the very least, we have reopened communication between you and the publisher. This could lead to a review of your situation and, hopefully, payment.

In the end, there are risks in any sort of litigation. It is time consuming distracting, can be expensive, and the outcome is never certain.

However, in a situation where your music is tied up, you have not been paid, and there is no response from the other side to try and untangle the claims and rights, it may, as unsavory as it is, be the only alternative left to you.

As a side note, I encourage everyone to read the IGDA's white paper on IP rights.