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Many of you may have seen the incredible halftime show by the Ohio State University Marching Band, performing a spectacular routine based on some of our industry\u2019s greatest hits.
What you might not know is that you as a game developer\/publisher can benefit financially (receive $$) when performances such as those are made\u2014provided you know how to set yourself up to do so..\u2026<\/p>\n
To know how, you have to understand what is called a performance right.<\/p>\n
When a composer writes for a game, they are usually under what\u2019s known as a Work for Hire agreement.\u00a0 This means that the copyrights of both the composition and the recording of the composition (they are separate things!)\u00a0 belong to the game developer or publisher\u2014whoever did the hiring.\u00a0 That gives the developer or publisher the right to ship the music along with the game.\u00a0 In that way, the music is not much different than art, programming code or any other element of a typical video game. <\/p>\n
The musical composition itself, however, has another right based on both copyright law and tradition dating back a century or more.\u00a0 That additional right is called the Performance Right.<\/p>\n
What exactly is a Performance Right?\u00a0 Simply put, a Performance Right is the right to control (i.e. get paid!) when music is either performed or broadcast to the public. <\/p>\n
When a musical composition is performed or broadcast to the public, performance payments are due to the composer and \u201cpublisher\u201d of the music.\u00a0 It\u2019s that simple. One obvious example of a public performance\u00a0 is a live concert; but \u201cpublic performances\u201d also include background music for a movie shown on HBO, a TV broadcast that includes music or a\u00a0 radio station\u2019s broadcast.\u00a0 Some not so obvious examples include a cover band playing songs in a bar, a movie being shown on an airplane, background music playing in a restaurant,\u00a0 or a synthesized \u201cring tone\u201d for a TV character\u2019s cellphone.<\/p>\n
Yes, you are a Music Publisher<\/p>\n
In music industry talk, the \u201cmusic publisher\u201d is the entity that owns the copyright to the underlying composition.\u00a0 When a piece of music is written commercially, very often (but not necessarily!), the composer will assign the music publishing rights over to whomever hired them\u2014in our case the game developer or publisher.\u00a0 We\u2019ll see why that\u2019s important in a few paragraphs.\u00a0 So if you develop or publish games, chances are you\u2019re also a\u201dmusic publisher.\u201d<\/p>\n
Ok, so as a \u201cmusic publisher\u201d I\u2019m entitled to get money if my game\u2019s music is performed \u2026 like that football game playing marching band arrangements of my game\u2019s music\u2026<\/p>\n
That\u2019s all fine and good\u2014but how do I know if someone somewhere performed or broadcast my game\u2019s music?\u00a0 I can\u2019t exactly sit and listen to every radio station in the US, watch every football game, check every concert program and monitor every TV channel and radio station and then go ask them for money\u2026<\/p>\n
You\u2019re correct\u2014that would be a gigantic undertaking.\u00a0 Fortunately, there are organizations whose sole purpose is to do pretty much exactly that\u2014determine what music is being broadcast or performed and keep track of it all.\u00a0 Those organizations are called Performing Rights Organizations, or PROs.\u00a0 In the US, there are three main PROs, ASCAP, BMI and SESAC.\u00a0 They also have international counterparts.\u00a0 A PRO has three main jobs:<\/p>\n
Determine what music is being broadcast or performed,
Collect performance royalties from those doing the broadcasting or performing and
Distribute the performance royalties to composers and publishers.<\/p>\n
Read numbers 2 and 3 again.\u00a0 The money for performance payments comes from those companies doing the performing and\/or broadcasting.\u00a0 PROs therefore collect money from radio stations, hotels, bars and restaurants, over the air, satellite, and cable TV networks, orchestras\u2014to name a few and distribute it to the composers and music publishers.\u00a0 The flow of money is from traditional broadcast media to the videogame companies and composers.<\/p>\n
Oh..I get it.\u00a0 It\u2019s the radio and TV stations that pay performance royalties\u2014and they pay them to us\u2014the owners of the music!\u00a0 That\u2019s pretty cool..<\/p>\n
This all sounds great\u2014what do I have to do? <\/p>\n
50-50 split<\/p>\n
In order to receive payments from a PRO, both the music publisher and the actual human composer have to join a Performing Rights Organization.\u00a0 After that, each composition needs to be named and registered\u2014this is so the PRO can know who wrote what and what belongs to whom.\u00a0 And of course, where they should send the royalty check in the event the composition is performed or broadcast.\u00a0\u00a0 The cost of joining a PRO ranges from nothing to a couple hundred dollars.<\/p>\n
There is one very important note about PROs.\u00a0 Usually a performing rights organization such as ASCAP requires that the performance payment be split 50\/50 between the music publisher and the actual human composer.\u00a0\u00a0 And they won\u2019t send a check to either unless they send it to both.\u00a0 For this reason, half the performance royalty is sometimes called the \u201ccomposer\u2019s share\u201d (sometimes called \u2018writer\u2019s share\u2019) and the other half the \u201cpublishers share.\u201d\u00a0 This means you need to make sure the contract you have with your composer actually allows the composer to receive their portion of the performance payment from their PRO, because if they don\u2019t get a check, you don\u2019t get a check.<\/p>\n
Sometimes there are seemingly innocent clauses in a standard software industry work for hire agreement that can preclude the composer from receiving the composer\u2019s share of the performance royalty.\u00a0 And if they don\u2019t get a payment, the developer\/publisher doesn\u2019t get a payment.\u00a0 A good way to ensure that doesn\u2019t happen is to insert a clause similar to this into the contract:<\/p>\n
“Composer shall be entitled to collect the \u2018writers share\u2019 of public performance royalties (as that term is commonly used in the music industry) directly from a public performance society that makes a separate distribution of said royalties to composers and publishers.”<\/p>\n
All that does is let the PRO pay the composer for their performance royalties.\u00a0 Since a game developer or publisher can\u2019t receive a check from a PRO for the composer\u2019s share, including a clause like this doesn\u2019t take any money out of the developer\u2019s pocket or cost them anything.\u00a0 It\u2019s also important to note that as a game developer, you can\u2019t have the composer \u201csign over\u201d the composer\u2019s share.\u00a0 The PRO will only send the composer\u2019s share to the actual human composer.<\/p>\n
Remember!\u00a0 The phrase \u201cperformance royalty\u201d is the money both you and your composer receive from the PRO as payment for the public performance of the music. Often a composer will try to insert that clause into their game contract and the game company\u2019s lawyer will see the word \u201croyalty\u201d and freak out, usually thinking the composer is asking for some sort of \u201cper game sold\u201d payment.\u00a0 (“Often” as in “it happened to me”)\u00a0 They are not.\u00a0 They are trying to ensure that they (and probably you, too) can receive performance payments from their PRO.<\/p>\n
All this is very interesting, but I don\u2019t see how it applies to video games.\u00a0 After all, the only use for the music is in the game\u2014a game isn\u2019t like a movie, which might be broadcast on TV.<\/p>\n
It is true that a lot of video game music is never performed or broadcast.\u00a0 But consider the sell out concerts of video game music such as Video Games Live.\u00a0 In addition to dozens of live concerts per year, last year Video Games Live was taped and\u00a0 made into a PBS television special and broadcast nationwide.\u00a0\u00a0 Not only that, but arrangements of popular video game theme are performed in concerts, at football games (as in the Ohio State game) and other venues.\u00a0 Not to mention specific game-related TV shows such as the VGA, etc.\u00a0 And there\u2019s the unexpected.\u00a0 I had the good fortune of composing the music for the arcade video game, NARC.\u00a0 That arcade game\u2014and its music, were in movies such as T2, TMNT as well as (the very forgettable) \u201cThe Boyfriend School.\u201d\u00a0 And of course, we are all familiar with the South Park WoW episode.\u00a0 With games so entrenched in popular culture, it is increasingly common for games to be shown\u2014and the games\u2019 music heard\u2014throughout other media such as tv shows, movies and concerts.\u00a0\u00a0 (just 3 days after posting, the Ohio State video has over 4 Million views!) And with each, performance payments are collected by the PROs for distribution to the music publishers and composers.<\/p>\n
How much are these performance payments?\u00a0 They can run from virtually nothing to tens of thousands of dollars based on many factors, including \u2018reach\u2019 (how many people can hear the performance).\u00a0 So a jazz quartet playing a game cover live in a small club won\u2019t generate much in the way of performance payments.\u00a0 That same song, arranged for marching band on a nationally televised broadcast\u2026 somewhat more.\u00a0 And an episode of South Park that is shown over and over and over\u2026 quite a bit more, still.<\/p>\n
So if you\u2019re a game developer or publisher, don\u2019t wince when your composers ask about including \u201cPerformance Royalties\u201d clauses in their contracts.\u00a0 They may be helping you make additional money without your having to do much of anything. <\/p>\n
P.S.\u00a0 Astute readers will realize that performance payments isn\u2019t the only money game developers made from their music via the Ohio State Marching Band.\u00a0 In later posts, we\u2019ll discuss other ways of monetizing your game\u2019s music.\u00a0 Very astute readers will notice we\u2019ve simplified things a tad and didn\u2019t discuss what specifically constitutes a \u201cperformance\u201d as well as the implication for streaming and the internet or Sound Exchange.\u00a0 We\u2019ll cover that later as well.\u00a0 Music rights are a bit long for a single article!<\/p>\n
Brian Schmidt is a 25-year game audio veteran and an independent Game Audio Consultant, Composer and Sound Designer at Brian Schmidt Studios, LLC.\u00a0 He is also the founder and Executive Director of GameSoundCon.\u00a0 Brian sits on the GDC Advisory Board and is President of the Game Audio Network Guild.<\/p>\n
Source: Gamasutra<\/p>\n","protected":false},"excerpt":{"rendered":"
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