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Music and Media

Mastering new media for your music career

The Gain from Games
Video game music composers should reserve their performance rights

By Christine A. Pepe, ASCAP Director of Legal Affairs

Rock Band®, Guitar Hero®, Dance Dance Revolution® (DDR), Stubbs the Zombie® — these are just a few examples of video games in which music has increasingly become a focal point, or at the least, an important element. As a side note, for those indie-rock fans, the Stubbs the Zombie soundtrack is quite good, featuring classic covers performed by bands such as Rogue Wave, Death Cab for Cutie, The Raveonettes, The Flaming Lips, and last but not least, The Dandy Warhols. I highly recommend it.

Now, there was a time when video game music was simplistic, rudimentary if you will. Think Pac-Man ®, Ms. Pac-Man ®, Donkey Kong ®, Donkey Kong Junior ® and Galaga ®. It is probably difficult to imagine a use of these trademark video game songs in a context other than the games themselves. So it isn't surprising that, beginning decades ago, a practice developed whereby the music composers for these games typically relinquished all of their rights (including their performance rights) to the game developer and producer in exchange for an upfront payment. Once the physical copy of the game was sold, no more fees went to the music composers.

That was then. Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box—it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). ASCAP is actively licensing such online video game services. If a game songwriter or composer member of ASCAP has reserved his or her right to collect the writer's share of the performance royalty, that writer or composer is now in a position to receive recurring royalties. In fact, game developers who register as publisher members of ASCAP would also be eligible to collect public performance royalties when their games are delivered via online services licensed by ASCAP.

ASCAP encourages its members who work in the video game industry to adopt the model that has developed in the film and television industries. In the film and T.V. worlds, the reality is that a producer needs to hold all rights in order to distribute the ultimate work. Therefore, film/T.V. songwriters and composers are required to give up their ownership rights in the musical work typically through a "Work for Hire" agreement, which is the industry standard. Nonetheless, in this industry, the composers and songwriters routinely negotiate a contractual provision allowing them to receive performance royalties, which can be a significant revenue source.

Similarly, songwriters and composers in the video game industry may reserve the right to receive performance royalties and should not simply consider the upfront payment, but also the potential use of the music (i.e., in television, film and commercial contexts) and the potential for recurring performance royalties in the future. Sample contractual language that would reserve the performance right would be as follows: "Composer shall be entitled to collect the 'writers share' 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."

For more information about how ASCAP is leading the call for performance royalties in new media video games, please contact Shawn LeMone in ASCAP's Los Angeles Membership office at slemone@ascap.com, and check out the Game Audio Network Guild (GANG) at www.audiogang.org.

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