Thursday, November 29, 2012

Maximizing Composer Agreements

by Kole Hicks

*First and foremost, while this may be potentially applicable across various freelance disciplines, I’d like to mention that this article is being written from the perspective of a Composer who mainly works in the Game Industry (with some additional experience in the Production Music world). Furthermore, it’s always recommended to hire legal help from an attorney with experience in your specific field of work.

We’ve all been here before, many (or dare I say "most") of us dealing with this situation more often than we’d like. The people involved are great, the project is inspiring, but that budget... oh those numbers just don’t add up right. It’s true that most of us would prefer to keep the "creative hat" on and delegate the "business hat" to a manager or attorney. While it’s always wise to hire someone knowledgeable in the inner workings of legalese and contract construction, negotiations may cease before you even get to that point.



So in situations where the Company/Developer/Producer doesn’t have a large enough budget to cover the "standard" fees and terms of an Agreement, it’s essential that you facilitate creative negotiations that’ll be beneficial to each party. Agreeing on something that quells their budgetary concerns, while maximizing your potential benefits.

Here are a few ideas that may help you maximize the benefits in your Agreements.

I. License Your Music

The game industry has a reputation for wanting to own everything they possibly can and it’s understandable as to why, because the legal side evolved from software. It’s easier to just pay more money upfront to own something than have to deal with potential legal problems down the road. However, royalties don’t exist at the moment for Game Composers and we’re very much use to that from the Film and Television world. So how do we potentially bridge the gap?

One idea is to License the music you create so that the developer can use it in their game, but you have the option of selling or using it elsewhere after the game has shipped. There are many talking points involved in a Licensing Agreement and all of these can be negotiated. For example, what will this initial License cover?

Will it only cover usage of the composition for the game on one platform, how about any trailers or promotional videos, DLC or sequels? All of these points are negotiable and will allow you to define a License coverage (and re-licensing fees) that both parties can feel comfortable with.

II. Soundtrack and Bundles

Another idea, in addition to or replacement of a Licensing Agreement, is to retain all of the revenue from sales of the Soundtrack. If the developer doesn’t have a large enough budget to pay many of the standard fees upfront, then it may be possible to recoup (or possibly exceed) some of that monetary risk later down the line with Soundtrack sales.

Even if you’re working under a WFH Agreement I would urge you to try and hold onto as much of the soundtrack revenue as possible. It may be nearly impossible with larger companies, but smaller studios may be open to the idea. Especially if you take care of everything (perhaps using something like CD Baby) and report monthly with sales data. Eventually sending them a quarterly check based off the percentages you negotiated.

In addition to separate sales of the Soundtrack, it may be possible to negotiate a potential "Bundle" package that includes both the game and soundtrack. Usually the Soundtrack and Game are offered at a discounted rate, but the lower price tends to make up for itself in a higher number of sales. The thought behind this strategy is that a decent percentage of gamers may not ever think to buy the soundtrack separately from the game (unless they really love the music). However, if it’s offered for only a few dollars more in a bundle, then they may be more willing to part with that amount of money for additional value in the form of a soundtrack.

III. Exclusivity

If the developer is open to a Licensing option, then they may request that the composition you create remain exclusive to the game for a certain amount of time after the initial release. This amount of time can vary drastically and numerous factors must be considered before both parties can agree to an exclusivity period. Every month that the composition remains exclusive to the game, is another large handful of days that you can’t license it to another project or possibly sell it to a music library.

If you’re finding it difficult to agree to a specific exclusivity period, then it may be easier to write in language for two possible scenarios based off the performance of the game. If the game is doing quite well after its release then perhaps the composition shall remain exclusive for a little bit longer; however if sales/downloads of the game are lacking then it would only be fair that the exclusivity period be shortened.

Furthermore, it’s essential that you get a clear answer on the actual release date of a project, as many modern games (especially PC) will release an Open Beta yet still charge customers or have already implemented monetization. By traditional definitions this could be considered a full release, but the company may not see it that way, so make sure to get an official release date in writing if you plan on re-licensing the composition after the exclusivity period.

IV. Revisions and Creative Control

Revisions and iterations are a part of any creative process, but some developers (if not restrained) can micromanage a piece of music into the ground. That is why it’s essential to write in a specific number of revisions on a single piece of music into the Agreement. Any revisions over that amount should warrant additional compensation. I personally like 3 revisions and work that into as many of my Agreements as possible. It’s a high enough number to facilitate efficient feedback so I can create something special that resonates with the developer, but also low enough to guarantee that any overly extraneous work or revision requests are additionally compensated for.

Furthermore, based on the budget of the project and what you can negotiate, it may be possible to retain creative control over the music’s direction. This not only gives you the power to revise cues at your own pace, but also the additional benefit of deciding on the overall palette/feel/goal of the music. Obviously this would require an enormous amount of trust from a developer, but in the right situation it’s possible and very much worth pursuing.

V. Right of First Refusal and Future collaborations

Sometimes if a project doesn’t have an adequate music budget, but is currently pursuing funding/investors, then they may (at some point in the middle of development) acquire additional monies for the game’s development. In this situation, it’s essential that you write in the Right of First Refusal on creating (or re-creating) any of the music for the game. It’s hard to imagine a developer disrespecting all of the time you’ve invested up to that point and throwing you by the wayside for another Composer, but it can happen and is best to have covered.

Furthermore, in some micro-budget situations it may be pertinent to write in language that guarantees you to be hired for any sequels, ports, DLC, or maybe even wholly different projects. All of which are assumed possible because of the original game’s financial success, at which point you should be rewarded for your investment.

VI. Bonuses

Lastly, but certainly not least, as there are tons of options I’ve yet to mention, we have the option of writing in Bonuses into the contract. The traditional bonus structure is based off the number of units sold and is usually attached to a specific dollar amount the Composer shall receive.

However, it’s entirely possible to base the bonus structure off of different goals like: Total downloads, Youtube Video Hits (if you did the Trailer/Promo music), etc. Furthermore, the bonus compensation could be a specific dollar amount, or (if the developer would like to make sure it gets invested right back into the quality of the game) then perhaps it could go into the funding of live recordings. Paying for professionals like a recording engineer, studio, session musicians, mixer, etc. All of this should be on top of your initial creative fee of course.

In a world of diminishing music budgets for projects of all sizes, I hope you’ve found this article helpful. We don’t always have to just accept an Agreement with the provisions written in by the Company / Producer / Developer. It’s guaranteed that those provisions heavily favor them and if they don’t have an adequate budget to pay for the lack of beneficial provisions for you, then you have the prerogative to suggest creative solutions. Thanks for reading and I wish you all the best in your future Agreement negotiations!

Some older tracks being pruned today

This month we have added a huge amount of new music to As per our tradition, we follow up by removing some old tracks. We call it "pruning the catalogue".

Why do we do this? Because we made a decision when we started this business back in the year 2000, that we would not turn out like other old, established music libraries, having thrived for 15 years, to still be selling that 15 year old music and thus starting to sound outdated. For this reason we pro-actively hunt down tracks in our catalogue that have existed on our site for a long time and have fulfilled their potential and outplayed their part in our business. We are committed to keeping the catalogue fresh.

Rest assured, we add at least 10 new tracks for each old one that we remove -- so far, anyway. So, our catalogue still keeps growing at an immense speed, even though we are removing some old tracks.

Today we are saying goodbye and thank you to the following tracks:

8th Day
Alegria Passion
Bottom Feeder
Dirt Underneath
Fun Theme
Guitar Slinger
Level H
Morning Sun
Network News
Race Car
Stimulation Three
Super Samba
The Squirrel
The Zero Song
U R So Deep
Welcome to the Machine

Saturday, November 17, 2012

YouTube, Copyright notices and YouTube Safe Music

Got a "copyright notice" on music licensed from us?

If you have licensed a music track from and you get a "copyright notice" on your video, where the music ownership is claimed by some company (e.g. CDBaby, AdRev), first of all, rest assured that you're not in any kind of trouble. You are not being accused of copyright infringement. You are simply being informed that our music was found in your video.

Copyright notices on YouTube are completely automated. YouTube's automated systems do not know that you have bought a license, so that's why you're getting the "copyright notice". The copyright notice can easily be removed by using the "Dispute" feature on the YouTube copyright notice page to provide documentation that you've purchased a license to use the music in your video. Within 24 hours, the copyright notice on your video will be removed.

In an ideal world there would be a way to provide License information at the time when you upload your video to YouTube, but so far that is not the case. So the process is: (1) You upload the video -- (2) YouTube automatically finds our music in it and generates a "copyright notice" -- (3) You use the Dispute link on the YouTube page to provide documentation that you have licensed the music -- (4) The copyright notice is removed from your video. It's a little bit of a hassle, but takes less than 2 minutes, and it's not dramatic.

If you still have trouble with this, fill in our contact form and let us know (A) the link/URL to your video, (B) details of your license order, such as order number or customer name so that we may find the order, (C) information from the copyright notice screen on YouTube which displays the track title being found in your video, the artist and the company claiming administration of the track. We will help you to look into the matter, possibly contact the artist to get them to help as well. If you are a paying customer, we will definitely get the copyright notice removed from your video(s).

Classical music copyright notices

With classical music recordings, the situation is messy. The thing with classical music is that the actual composition is in the public domain (it belongs to no one and everyone), but who ever actually makes their own recording and arrangement of a piece of classical music automatically owns the copyright to that recording. We have the rights to our version of Chopin's Nocturne. But another company may have made their own version of the same composition, and they may have put that recording into the YouTube audio recognition system. And that fully automated system often cannot tell the difference between one version/recording and another!

If you received a "copyright notice" message when using classical music that you licensed from us, most likely some company, somewhere, has made their version of the same composition, and they own the rights to that recording. They don't own the rights to the version that we sell, but YouTube's automated systems cannot tell the two versions apart from each other, and the track that you licensed from us is wrongly being matched to a recording of the same classical composition made by somebody else.

It's a real mess up there at YouTube with classical music, and in some cases, several big music publishing companies are claiming the rights to the same piece of music, even though that recording doesn't even belong to any of them. This thread over at Google Groups illustrates some of the problems people are having with companies claiming rights to public domain and classical compositions that they don't own the rights to.

There's not really much we can do about this, other than to recommend you use the "Dispute" feature and, if necessary, provide the license documentation that you got from our site when you made your purchase. You may explain during the dispute submission process that this is a case of mistaken identity and that this version so-and-so composition is a recording that is licensed to you via and it is not the same recording as (what ever company is claiming the rights to it). With a bit of luck, this process will lead to the claim being removed from your video.