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Wednesday, December 29, 2010

Game Developer Going Back On His Word

Originally posted on bpmusic.com on 3/5/2009:

To protect identities, this is a generalized email from several similar emails:

I've just come across your "Getting Started As A Video Game Composer" article and I wanted to let you know that it has been a very illuminating read. The section on payment is particularly relevant to my current situation and I was hoping that you could provide me with some further insight and/or guidance if you are able.

I have written, recorded and submitted several pieces of music to a developer. We had what I and he considered an agreement -- until recently. Now he says they will not pay the agreed price. He offered much less instead and the possibility of a small royalty if the game sells well.

Is your original agreement in writing? It doesn't have to be a formal document or even just one document. A contract could consist of multiple agreements via email. Of course this only helps if you end up having to go the legal route, which has all sorts of problems in itself. But, you'd have something to take an attorney that he/she could work on.

If the second offer is not in writing, you need to have it in writing if you agree with it. Taking royalties sounds really good until someone quits paying. In that case, the problem is yours, and without paperwork it will be a tough problem to solve.

If this was my situation, I'd withdraw my music because of the cancellation of the agreement. I'd write and tell them that if they want to use the music, they need to make it plain and clear what the financial situation is (stating it with clear promises in that regard).

Having to sue someone is no fun. You don't want to be put in that kind of a position. It's costly, too, not to mention time totally wasted that could have been spent moving forward. But, sometimes it is the only recourse.

I am open to the possibility of being paid royalties, but I am unsure of what a fair or standard percentage would be. My research has turned up little useful info. The few people I have spoken to have experience only with selling their music outright.

An article at the ASCAP site states: "Per game royalties range from 8 cents to 15 cents per composition and buyouts range from $2,500 to over $20,000." But that article is several years old and refers primarily to rates for existing music.

There is no standard. And how could ASCAP have any idea about the range of game royalties? They have nothing to do with the agreements between composers and game companies. There aren't that many people getting royalties. 99% is buyouts. And "fair" is what you and the developer agree to. I advise you to forget what others say they have done and decide for yourself what you think is fair. Then hold the line on that with the developer. If the developer can give you written proof that you are out of line, maybe you'd change your mind. Otherwise, if they want to use the music, they have to go with what you think is fair.

If you get a fabulous deal and can never collect on it, what good has it done you?

There are some who have written me about working with friends or acquaintances on projects. Unless you have a very clear, written agreement in this kind of situation, you'll not be friends or acquaintances for long. Look at the software companies that are still in business and how they've broken off relationships with the original members of the company -- much of that is due to a failure to have a clear, written understanding.

I know how easy it is to think "I need to make sure I get as much as possible for this music without losing the deal." I think it's better to say "I want to get paid fairly for my time and talent -- what amount would be fair compensation?" In that case, it doesn't matter how much the other party makes using the music -- you've still been paid fairly. In fact, I don't care what they get paid (but I hope it's at least enough to keep them in business).

The big positive about licensing music and royalties is that you get to keep the rights to your music and can possibly use it in other situations. The big positive about buyouts is that at least you've been paid and don't have to wait for your money. Licensing with a one time, up front payment might be the best of both worlds. You get to keep the copyright and agree not to license the music for a competing product.

Also remember that royalties may never amount to much because you are depending upon lots of people doing a good job to sell the game (marketers, distributors, etc.). And you have absolutely no control over whether the game ever gets to the marketplace. I've had many projects that never made it to the light of day because someone "down stream" failed to finish the project.
I've asked how much music is needed, but the developer has never given me an answer. His reply is just, "More."
This is typical of smaller developers in my experience. Also, a few developers are really lazy when it comes to planning -- especially music and sound. They'll keep you writing more and more and usually end up taking the first things you've presented. Meaning that the latter things were a possible waste of time (but they're good for maybe a later project). Still, it's not fun to work on something that's just cast aside. It feels to me like this developer is not even trying to be professional about this. That and they don't want to promise anything, which makes me suspicious.

You've relied upon the original agreement and met the requirements. So, you are owed the amount originally promised. But, it would probably cost more to go after it than it would be worth in time and money. It's even more difficult if they're in a different legal venue (like several states/countries removed from your location).

If you want out of this deal, make sure to send them a return receipt certified letter saying that since they have told you they will not pay under your present agreement you are withdrawing the music and they do not have authority to use it. I'd also send a similar letter to the publisher of the game, letting them know that if they release the game with your music, you will hold them responsible for payment in full under the original agreement. If you do this in a professional manner, the publisher will appreciate the fact that they will not be releasing a product without clear copyright agreements.
A small part of me that wants to go along with the latest agreement so that most of the music in the game will be credited to me, royalties or no. This is partly because I want the experience and partly because I assume that it could lead to more work with a more solid developer. However, on principle, my gut is telling me to just pull the music.
I well understand. But what if they don't credit the music? They might "forget" and there's really nothing you can do about it. That's happened to me and others I know. I've never had a situation like you are describing get me more work, but I can't say that it couldn't happen.

If the game is really good, it might be enough reason to go ahead and let them use the music. It's also been a learning experience for you. If, in the future, developers do not want to put an agreement in writing, it's probably best to pass.

Whatever you decide to do, I hope that you can wash the negativity of this experience away so that it doesn't affect you in the future. I try to make sure that I don't say later, "I wish I had ...." So, whatever decision I make, I live with it and let it go if it doesn't turn out to be a good decision. I also learn from it as much as I can. It sounds to me like you already have a handle on that sort of thing. I think if you're destined to do some type of thing (like compose), those things will be attracted to you without special effort. My best gigs have come to me through no past efforts of my own. Those I tried to force to work ended up being mediocre or worse.

You could let them use an amount of music that they can pay for under the original agreement. In that case, they have lived up to the agreement and you have more than lived up to it.

Even if you do not end up with music and/or credit in this game, you can claim credit because you have provided original music for it and influenced its development. You can list "music written for Project X." My experience is that future developers rarely take the time to listen to my music inside a game (unless it was extremely popular and they played the game). They want a demo they can "surf" through.

Oh, big point: If you let them use the music for nothing, write them a certified letter (return receipt) and tell them that you are licensing it to them for use in the game -- a non-exclusive license. That way, if the game/music becomes a hit, you can further license the music for TV/movie/commercials/etc. In that case, do not sign a "Work For Hire" agreement.

If you are not comfortable handling this sort of thing, by all means contact an attorney who has experience in the video/computer game business.

My recommendation in this regard is Charles B. Kramer of the New York and Illinois Bars. Charles was the first attorney to speak at the earliest Game Developers Conferences. He has a wealth of experience in Copyright, Trademark, Licensing, Contracts and Computer/Video Game Law.

Email: charles@charlesbkramer.com
Address: 200 East 10th Street, No. 816, New York, NY 10003, USA

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