Game Composers Get the Shaft, Argues Rights Attorney

"You never forget your first love," said Jim Charne, a lawyer specializing in digital entertainment. Specifically video games.

Charne says the first music deal he oversaw was for the first original piece of music composed for a game: Pressure Cooker for the Atari 2600. Although the device was designed with a chip capable of reproducing 12 tones of music, in practice, it could only faithfully produce eight, all "bleeps and bloops." For Pressure Cooker, a professional jingle writer was hired to create a piece of music using only those eight tones. The result: the first video game soundtrack.

Now here's a test: Name that composer.

Chances are, unless you know him personally, you won't be able to. And not because he doesn't want to be known, but because his music (and most game music) is created "for hire." This means a lot of things, but the most important of which is that the creator of the world's first original video game soundtrack ceded all rights to his work to the publisher of the video game, Activision.

"Music has an afterlife," said Charne, speaking at a round table talk at the Game Developer Conference in San Francisco. In attendance were lawyers, agents, composers, students, one journalist and a few people whose music should be well-known to you, even if you wouldn't recognize their names.

And that, after all, is the problem.

According to Charne, most of the laws governing music copyrights were written in 1908, when the height of music technology was the mechanical piano. Composers would be paid a fee to create music for the manufacturers of the mechanical piano rolls, then they would receive a separate royalty for each subsequent sale of those rolls. As technology advanced, radio and television broadcasts required a separate method of accounting, and organizations like ASCAP and BMI evolved to sell music rights in bulk and then keep track of who was owed what. This typically broke down to one half of every dollar in royalties being paid to music publishers, and one half paid to composers. And that's where the law (in a nutshell) currently stands.

If you create music for television or films, you reap the benefits of this arrangement and over 100 years of established tradition and methodology for collecting royalties and protecting composers' rights. If you create music for video games, however, you get squat.

Video game composers tend to get the shaft because game companies default to using the same deal structures for music as they use for code. A piece of code created for a game belongs to that game forever, and is meaningless without it. Music, however, can live on, and often does, but the composers aren't paid for that.

To make things more complicated, most video game composers perform multiple tasks; as composers, arrangers, conductors and (if they make the music themselves) performers. In the television and movie world, these are separate jobs that come with separate titles and fees. Video game composers get a lump sum and (typically ) zero recognition.

Charne argues this needs to change.

"Composers need to be compensated," he said, encouraging composers to negotiate for better deals than "work for hire," even if that involves receiving a reduced fee while retaining more rights.

One way Charne suggests improving composers' lot is to negotiate for the half of the performance rights ASCAP collects for composers. Even if a game publishing company owns the rights to the music in the game, they can't collect the composer share under any circumstances, ever. A fact Charne admitted is hard to convince them of. But if the composer doesn't (or can't) collect that share, no one does. Writing that into your contract is a good way he says, to get paid for the long life of your work without costing game publishers a dime.

"Why shouldn't there be a song that breaks off a soundtrack to become a hit on the radio?" Charne asked. "Who's to say in 20 years time there won't be a Halo Musical?"

According to Charne, if you're the composer of the next game to get as big as Halo, you probably won't see a dime of whatever that music earns unless the way those contracts are written substantially changes.

"Why would you take the risk that you might create the next White Christmas and then get shut out?"