"Famous Last Words"

The Value of Game Music (November 2003)

Dear Jim,

I'm a composer who is starting to work on game soundtracks.

I began my career in a rock band. When we signed our record contract, we also negotiated a music publishing deal and got an advance that paid for a lot of early expenses.

After we broke up, I was hired to compose the soundtrack for an independent film. Part of that deal was that I lost the publishing for my work. (I know this a games column but is that "kosher"?)

Now I've got the chance to work on a game; but the developer wants me to sign away all rights on a work- for-hire basis. I've always tried to maintain an interest in my creative output. Is that how the games business works?

Signed,

Member ASCAP and GANG

Dear Member:

The recorded music industry is fundamentally different from film work and games in that the totality of the creative output on audio CDs is often the work of a single artist or small group. In this climate, ever since the Beatles when artists started to write their own songs, it has become more and more the norm for songwriters to maintain control, or at least influence, over their copyrights. In the case of your rock band, when you made your publishing deal, you lost control of the copyrights, but you were compensated.

Motion pictures and games, on the other hand, are large collaborative works. All rights must be centralized in the producer, or else exploitation would be enormously difficult if not impossible.

When you were hired to compose the movie soundtrack, I'll guess you were paid a fee, you assigned the copyright for your work to the motion picture producer (maybe on a "work-for-hire" basis), and waived the right to further payment for certain motion picture-related uses of your music. However, you may have retained your interest as the composer, and the agreement may have provided that you would receive royalties (as the composer and maybe also as the conductor and/or producer of your own score) for certain recorded uses, sheet music, and public performances of the compositions.

Now we get to games. Logically, we would expect the business model to be similar to motion pictures. Both works are huge collaborative undertakings. As in the movies, soundtrack music is composed, orchestrated, produced, and integrated into the larger production to provide flavor, continuity, and emotional power.

However, historically, work on a game has been contracted on a work-for-hire "100% buy-out" basis with all rights and income going to the publisher. Under such an arrangement, even if your own contract is with the developer, he or she must be able to pass along those rights to its publisher client.

It took years of contentious battles between developers and publishers before publishers stopped demanding ownership of developer core technologies, and recognized the importance of developers retaining ownership of these core assets. This battle has never been fought over music or other creative elements of games, which publishers seem to regard as their essential property.

When music is purchased on a "buy-out" basis as a work-for-hire, under United States copyright law, the employer-for-hire (here the developer and finally the publisher) is the author of the work for copyright (but not credit) purposes and the composer loses any trailing income streams. This can be doubly painful when the composer is also the conductor or producer because there may be two income streams lost. These are what has become known as the writer's share of copyright (music publishing) royalties, and the artist's or producer's royalties from ancillary sales of the score in recorded music form or reused in other media.

One unsettled area of such a "buy-out" deal is whether the composer remains eligible for his or her share of public performance income generated through a performing rights society such as ASCAP or BMI. Register the compositions with your society and ask them whether they will pay you directly. Even if they say yes, it may not be great news. Game music gets very few public performances as they are tracked by ASCAP or BMI.

The publisher's rationale in requiring a buy-out is that you've been engaged and paid for the music. Game publishers see music no differently than they see programming code or graphics - just one further element of a game.

I believe, however, that music is different. Standards of fair dealing for music, established over the last 100 years, preserve the right of the composer, producer and performer to receive ongoing income from their work.

While soundtrack composers in both the games and motion picture fields are unlikely to ever retain overall control of their copyrights, it is not impossible to believe that game publishers would eventually adopt the "composer-music publisher" model and recognize composers' interests in ongoing royalty streams generated by their work.

Similarly, conductors or producers of soundtracks should also receive royalties for use of their music when it extends beyond the original use in the game.

Treating composers as songwriters, producers, and performers, using standards established in the music publishing and recorded music industries, rather than as work-for-hire on a "buy-out" model, would be a good way to recognize the enduring value of music, and the talent that contributes it to computer and videogames.