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Famous Last Words May 2011

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DISCLAIMER: This column is intended for general educationaland entertainment purposes and is not legal advice. Every situation is unique. Anyone entering into a contract should have a lawyer who can provide counsel.

Jim Charne, Attorney at Law

Jim Charne,

Attorney at Law

 

May, 2011

Famous Last Words

By Jim Charne, Attorney at Law

Composer Not Paid – What Can I Do? 

 

 

 

Dear Jim:  

I am a freelance game composer.  I was approached six months ago to do a score for a new social game.  I signed an NDA, we agreed verbally on a price, but no contract was ever received from the developer. 

I delivered the score – 17 minutes of music that the developer has been using in an on-line demo, trailer, and in showing the game to publishers. 

I’ve been calling and calling about getting paid. At first the developer ignored my calls.  Now he tells me he’s not going to pay me and there’s nothing I can do about it to stop him from using the music. 

Can you help me. 

Left out to Dry 
 

Dear Left Out: 

Here’s some background and a few steps you can take. 

  1. You are the owner of the music -- both the compositions and the performances of the compositions you delivered that found their way into the demo, trailer, and pitch materials.

 

You say you signed an NDA, but no contract.  Under United States copyright law, ownership of any original work of authorship vests in the creator from the moment it is fixed in any tangible form of expression.   

Without a writing transferring ownership of the music, you, as the creator and author, own it.  Your developer may, at best, have a non-exclusive right to make limited use of the music.  But if you were never paid, this is suspect.  Your developer may well be an infringer on the copyright of your music. 

        2.   If you have not already done so, I strongly recommend that you register the copyright in your music in the United States Copyright Office (copyright.gov). 

See Circular 56a (Registration of Musical Compositions and Sound Recordings) at http://www.copyright.gov/circs/ for more information on this process.   

If you are the author of both the underlying composition as well as the original sound recordings, one registration can protect both.  Registration is your friend! 

Why is it important to register?   

Under U.S. copyright law, registration is required to bring an action for infringement.  And if registration has taken place prior to infringement, the claimant (you in this case), can recover statutory damages without proving actual financial loss, plus recover your attorneys fees in bringing the action.  This is a huge advantage for the claimant. 

In your case, infringement that takes place prior to registration can lead to recovery of damages, but only to the extent you can prove actual monetary loss. 

So register now – as fast as possible!  If your developer continues to infringe after you have registered, you may have opened the door to post-registration recovery of statutory damages and attorneys fees! 

When you register, consider whether you want to register all the music as one work.  If there are multiple compositions, movements, pieces, it may be advantageous to split it up into multiple registrations.  The reason for this is that infringement of each work may constitute a separate cause of action subject to separate calculation of damages.  The downside is that each registration requires a separate filing and a separate $35 filing fee ($35 if done on-line – which is highly recommended). 

3.  Your situation shows why developers and publishers insist on contracts with consultants before work is commenced.  It also shows why I recommend that any contract by a non-employee make transfer of ownership of deliverables contingent on receipt of the associated payment. 

Once you have registered your work with the Copyright Office, a strong infringement letter can be sent to the developer.  That is a letter with teeth and will, hopefully lead to you being paid! 

 

  

Jim's Bio

Jim Charne practices law in Santa Monica, CA (www.charnelaw.com) where he represents developers, designers, composers and other clients in the games industry.  Jim has been a frequent speaker at GDC, is active in IGDA from whom he received an “MVP” Award at GDC 2006, in 2010 will chair the Practicing Law Institute video game law segment the week after GDC at its annual Entertainment Law Symposium in New York, and is a member of the Advisory Board of G.A.N.G.  Jim served as President of the Academy of Interactive Arts and Sciences from 1998 to 2001.

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Famous Last Words is intended for general educational and entertainment purposes and is not legal advice.  Every situation and circumstance is unique.  Anyone entering into a software-related contract should have an experienced lawyer who can provide counsel throughout the process.

©2011 Jim Charne.  All rights reserved.