"Famous Last Words"

The Treatment of Music in Games - Part 2 (September 2005)

Dear Readers:

One of the hottest topics at the 2005 Game Developers Conference was the treatment of music and musical performances in games.

Last month, we discussed the use of licensed incidental music. This is music “borrowed” from audio CDs; music created by recording artists originally intended for sale on audio CDs or by download, and integrated by software publishers into games. Depending on the nature of the use and the artist, publishers may pay steep license fees to secure these rights; or may be given rights by record companies and music publishers eager for the exposure provided by a big selling game.

This month we look at the other broad category of music that is part of games – music known as “underscore.”

Underscore is primarily instrumental or choral music composed specifically for the game. Unlike licensed incidental music, underscore is music composed to order, on a custom basis, in close consultation with game producers, to fit into the game at pre-determined locations and intervals, designed to elevate and enhance the experience.

Underscore serves the same purpose in an interactive game as in a linear motion picture or television program. It builds suspense, highlights action, adds intensity, dynamism, and life to the story line. Underscore is integral to the game playing experience.

Composers typically contract to compose underscore on a work-for-hire basis with the game producer acquiring all rights to the musical copyright and performances embodied in the underscore. This business model borrows heavily from the motion picture industry. Game publishers, like motion picture producers, feel a need to control this asset. The producer of the game (or motion picture) does not want the underscore music, that may come to be closely identified with the project, to show up unexpectedly, for example, in a “Bud Lite” ad.

In controlling all these rights, game publishers treat underscore the same as they treat software code, animation, sound effects, or other game elements. However, in many ways, music is different and deserves special consideration.

Let's take a look at a simple underscore. It may consist of three or more elements that can be subject to ongoing compensation for certain uses apart from the game.

The elements of the underscore are:

1. The underlying copyrights in musical compositions. Using music publishing business models dating back to the days when the piano roll was the height of music technology, composers still sign publishing agreements that assign their copyrights and provided for payment of the “writer's share” – roughly fifty percent of income generated through exploitation of their songs. The other half is retained by the publisher.

Contrast this with business practice in the motion picture industry. When a composer of underscore signs an agreement to deliver music to a movie producer, he or she assigns the copyrights. Movie producers pay for these custom composition services and expect to control the copyrights. However, a movie contract may provide for writer's share in the case of ancillary, non-motion picture-related uses of the music.

When a game music composer assigns the copyright to the game publisher, he or she, in effect, is signing a music publishing contract that contains no “writer's share.” Like the movie producer, game publishers justify this by observing that they are “paying for the work and expect to own it.” However, game industry contracts typically make no such differentiation between the primary use in the game and ancillary uses of music and deprive the composer of the “writer's share” in all cases.

In the most extreme examples, game companies may also attempt to prevent the composer from receiving the composer's share of public performance royalties that would otherwise be calculated and paid directly to the composer through ASCAP, BMI, or another controlling performing rights society. ASCAP, under no circumstances to which I am aware, will pay the composer's share of public performance income to the music publisher (in this case, the game company).

I believe that no composer should sign any agreement to deliver underscore unless the publisher recognizes the common practice of the music industry and agrees to pay the “writer's share” of income generated from exploitation of the copyrights in all uses other than as integrated into the game. This policy would bring the games industry into line with what are generally regarded as fair practices for use of music.

2. The individual performances of the compositions embodied on the mp3 or other music files delivered by the composer. In many cases, composers utilize their own recording studios to deliver master recordings that can be integrated into the game. The cost of studio time is included in the contract price for the score. In the event that the composer is also the performer, or conductor if an ensemble, orchestra, or chorus is used, the composer should also be recognized (and credited) as the performing artist.

If the score or elements of the score were to be licensed for use apart from the game (for example, for release as an audio CD, in commercials, on television, in a motion picture, etc.), the composer as artist should be credited as the performer and receive a competitive royalty. This is based on the model of the recording industry and is carried over in many motion picture underscore agreements. The royalty rate could be based on prevailing record industry practices adjusted down to some extent in recognition that the success of the game may be contributing to the sales of the audio CD.

Great music from games deserves to be heard. It would not sell on its own if it did not stand on its own. The underscore CDs from Halo, Final Fantasy and other games have been successful. The performers of that music deserve to be credited, recognized as the artist, and paid accordingly.

3. The composer of the underscore who delivers master recordings for integration into the game is also the producer. As used in the record industry, the “producer” of a master recording is the person who oversees the production, makes artistic contributions, and takes responsibility for delivering on time and on budget. Using this analysis, the composer may also be the producer of the game underscore.

Record producers typically receive a royalty.

In all of these cases, composers have been paid to deliver underscore for integration in the game. Just as their counterparts in the motion picture industry have learned, absent special circumstances, it is unrealistic to believe that a game music composer should be paid a further royalty, or retain a right to further compensation for use of the music in the game.

That being said, when underscore music has an ancillary life, as music frequently does, composers, performers, and producers should share in the bounty using formulas that have evolved across other segments of the entertainment industry over the past 100 years.

Fair treatment of composers, performers, and producers is an important step in attracting and retaining the top level talent needed for games music.