ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties
from the just-make-the-internet-like-tv-so-we-don't-have-to-change dept
Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn’t involve royalties seems automatically bad (despite all the success from artists who’ve been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP’s Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.
Not surprisingly, there are some major problems with the article.
First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games… yet she’s presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren’t even part of the negotiation. This licensing is about synchronization or mechanical rights — not performance rights. Labels have complained that these games aren’t paying enough for the music, but it’s the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn’t understand that, while music can add value to games, games add value to music. Pepe says that older video game music is “probably difficult to imagine… in a context other than the games themselves.” She isn’t trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren’t part of the game? The lesson from old video game music isn’t that performance royalties used to be negligible. It’s that success for a video game music composer isn’t just about writing good music, but about having that music associated with successful games.
Second, Pepe’s argument that there’s a public performance of music in video games seems like a real stretch:
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). [emphasis mine]
What does “streaming” a video game even mean? A video game is interactive; it’s not a one-way broadcast, but communication over a network. Is Pepe suggesting that there’s a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There’s such a thing as private communication over a network. Games like Gears of War, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn’t make it a performance, nor does that make it public.
But maybe Pepe isn’t referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download games, but that’s quite different from streaming. It’s the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution doesn’t mean public performance — the game is still played locally, just off a hard drive instead of a plastic disk.
Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it’s pretty hard to believe that just because software is run remotely it’s a public performance of the music, when the act of hearing the music would be indistinguishable if the software were run locally. Is it a “public” if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere — is using that a public performance? Do I need a license to listen to my own library because it’s on a different hard drive? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?
Furthermore, let’s pretend there’s actually public performance taking place. Is it even in a composer’s best interest to demand these royalties? (This is not about a composers “right to get paid;” composers are getting paid — upfront.) Making it harder for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati or House in the UK, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid to be promoted, but the game developers are even doing the hard work of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways to take advantage of the opportunity to make more money from the increased fan base. If ASCAP were really representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way of new business models. Of course, don’t expect ASCAP to promote anything that isn’t about increasing royalties. If your only tool is a hammer, everything looks like a nail…
Filed Under: licensing, music, video games
Companies: ascap
Comments on “ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties”
Agree With Everything You Said Except
I agree that ASCAP’s arguments for considering music in video games public performance to be ludicrous, however your one point: “it’s the games that increase the value (and sales) of the music, not the other way around.” I’d agree with this statement as it relates to music used in games like Madden, because people aren’t buying the game for the music, however with a music based game like Rock Band, it’s the music that is driving the value of the game.
Re: Agree With Everything You Said Except
I would have to respectfully disagree with you, here – while the Rock Bands that are band-focused may be getting bought due to their content, the mixed Rock Bands get bought just because…they’re Rock Band.
I’m not saying people don’t buy the games because of the music in them – but I’d bet that it’s just as likely(at least for the mixed Rock Bands) that gamers are buying them so that they have more Rock Band to play.
Re: Re: Agree With Everything You Said Except
I’m not saying people don’t buy the games because of the music in them – but I’d bet that it’s just as likely(at least for the mixed Rock Bands) that gamers are buying them so that they have more Rock Band to play.
I’m not quite so sure about that. I’m willing to bet that the reason they want more Rock Band to play is because the games have music that they want to play. If the makers of Rock Band suddenly started using only mediocore and poor music (be it mainstream or indy) I think the player base would drop. The players play those game because the music is good and they want to imitate those famous performers doing those famous hits. This would explain why some versions of Rock Band outsell others.
I noticed this with Dance Dance Revolution. Certain mixes were played more than others because they had better songs. Players were hoping for certain mixes over others to be brought to the states.
Re: Re: Re: Agree With Everything You Said Except
Agree & Disagree. It’s actually both.
Example one, Rock Band Beatles. Obviously, people will buy this version for the sake of the music.
Example two, Guitar Hero III. Personally, I love this version because of the unknown artists featured. Bands like Dragonforce were unknown to me until I played that game. They’re not for everybody, but I like them enough to consider buying a ticket to their show when/if they come to town.
Therefore, the music leads to game sales when it comes to known artists (Metallica, Beatles, Aerosmith, Van Halen), but the games lead to music sales for lesser/unknown artists.
Re: Agree With Everything You Said Except
“I agree that ASCAP’s arguments for considering music in video games public performance to be ludicrous, however your one point: “it’s the games that increase the value (and sales) of the music, not the other way around.” I’d agree with this statement as it relates to music used in games like Madden, because people aren’t buying the game for the music, however with a music based game like Rock Band, it’s the music that is driving the value of the game.”
I don’t think which one is benefiting from the other is really arguable in anyway. They both benefit from each others existence. Music would still sell if it were not on rock band or guitar hero. Guitar Hero and Rock Band would still sell if they had crappy music.
If you’ve played the entire Guitar Hero franchise you’d might have the same opinion, Guitar hero 2 was (as far as the music goes) probably one of the weakest of the series. yet it sold in much higher amounts than the original.
Re: Agree With Everything You Said Except
not correct here.
Video game soundtracks are hugely popular and pretty good sellers, some more than others. Just like soundtracks for movies. Of course in rock band music = the game, but only to a certain point if you were allowed to load your own music/tracks/etc similar to trackmania.
Re: Agree With Everything You Said Except
with a music based game like Rock Band, it’s the music that is driving the value of the game.
I agree. The simple way of looking at it is that it’s a mutually beneficial arrangement. The music drives sales of the game and the game drives sales of the music. In any case, the extent to which the sales are driven in one direction or another is irrelevent to the issue of performance rights, so why even get bogged down in making this distinction?
If the only tool you sell is a hammer...
If your only tool is a hammer, everything looks like a nail…
I personally don’t think ASCAP’s push for payment of performance rights in video games is an example of “if your only tool is a hammer…” Rather, I think that they know full well that performance rights don’t apply to video games, but that by throwing out terms like “streaming” and “internet-based services”, they can convince enough people that it does apply that they can wring more money out of the system.
So, while your analysis of why performance rights don’t apply to video games is interesting, I don’t think of it is news to the people who run ASCAP.
If the only tool you sell is a hammer, you need everyone to keep buying nails.
Re: If the only tool you sell is a hammer...
Good point.
“The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations).”
What if a music writer gives permission for his/her music to be used in a video game (perhaps for a fee) and he/she doesn’t want the ASCAP or any other organization or licensing body to profit from it or be involved? He should have that choice. These organizations that want video game producers to get a license for everything they do are just unnecessary parasites that want to create an artificial need for themselves through government intervention.
You also have to consider that there will always be lesser known artists with great music that are chomping at the bit to get featured in a video game. The big boys can reserve those rights, but someone else that’s comparable is going to step in and replace them.
Interesting. SOCAN (the Canadian equivalent of ASCAP) already has a tariff to collect royalties for music in video games that are communicated to the public by telecommunication (http://www.cb-cda.gc.ca/decisions/iir200810240062008-b.pdf).
Looks like ASCAP is getting the same idea…and I expect that other collecting societies will probably follow suit.
Sales of games like Rock Band or Guitar Hero aren’t always driven by the songs. Sure, sometimes they are, but in the case of my kids they don’t know 90% of the music in the games. They just want the game. They have, however come to love alot of the music in the game that they would not normally have known. We have even purchased several albums because of these games. Also, from what I understand, artists get more money from these games then they do from selling their albums. I don’t have a link to confirm that, but I read it somewhere on the internet so it must be true.
wha constitutes a public performance has been execessively broadened
I don’t think ASCAP is out of line for arguing there’s a public performance occurring when a song is used in a video game. How can we really distinguish playing a song via a stream and playing a song via video game. Both take place within your private home, to the exclusion of the public.
The real problem is how the definition of “public performance” is construed. According to the ASCAP website, “A public performance is one that occurs “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” A public performance also occurs when the performance is transmitted by means of any device or process (for example, via broadcast, telephone wire, or other means) to the public”
The last part of the definition is harrowing, as it fails to distinguish what is deemed accessible to the public. As I said above, categorizing a stream as a “public performance” sets a dangerous precedent. How is a stream different than a download that resides on you computer? Despite their differing degrees of permanence, a download and a stream are the same thing.
Likewise, how do we distinguish a stream from a performance via video game? They’re in the same bucket, but they should probably not be treated as public performances.
Re: wha constitutes a public performance has been execessively broadened
“I don’t think ASCAP is out of line for arguing there’s a public performance occurring when a song is used in a video game. How can we really distinguish playing a song via a stream and playing a song via video game. Both take place within your private home, to the exclusion of the public.”
….Holy shit, are you kidding me? Did you in two sentences actually say “I don’t think ASCAP is out of line for arguing there’s a public performance occurring when a song is used in a video game” AND “take place…to the exclusion of the public”? I’m hoping I’m missing a sarcasm tag here, otherwise you need to be a politician. Only they can contradict themselves like that.
“The real problem is how the definition of “public performance” is construed.”
No, the real problem is that people can’t have an ounce of fucking common sense and need to have obvious concepts defined for them at all. Public performance means that the purpose of use it directly PERFORM (in whatever the art’s capacity, be it music, video game, etc.) to the general public. End of story.
“According to the ASCAP website, “A public performance is one that occurs “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.””
That’s what makes them idiots. Or at least it’s what proves they think WE’RE idiots. I don’t know how you define substantial, but I would think that by these tools’ definition, the clubhouse of a private country club would be considered a public venue, so you can see how well THAT definition stands up.
“A public performance also occurs when the performance is transmitted by means of any device or process (for example, via broadcast, telephone wire, or other means) to the public””
But that’s not what’s happening. They’re tranmitting it to their CUSTOMERS private residences/equipment(in the case of mobile devices). There’s nothing public about it. By that definition, trucking companies need to pay a license when they transport music. If you think that’s reasonable…hold on…I’m getting really pissed here…
“As I said above, categorizing a stream as a “public performance” sets a dangerous precedent.”
I think you’d be better of just saying that categorizing a stream is…wrong.
Re: Re: wha constitutes a public performance has been execessively broadened
Listen, all I’m saying is that if a stream is a public performance, then why isn’t a video game a public performance as well? What’s so public about playing music off the internet in YOUR private den?
Re: Re: Re: wha constitutes a public performance has been execessively broadened
I think I see what you’re saying here…that if your definition of a public performance is so overly-broad as to include anything that is transmitted to the public instead of a performance that occurs in public, then (at least in your own mind) you’d be consistant in saying that a download or a stream of a song is the same as a download or a stream of a game that contains a song.
“A public performance also occurs when the performance is transmitted by means of any device or process (for example, via broadcast, telephone wire, or other means) to the public.”
A sensible person would interpret this to mean “to people in a public area”. But the only way that Pepe’s statement makes any sense is if she believes (or wants people to believe) that it really means “to a member of the public.” But if you take that latter meaning, it means any transmission, stream, or download of a song is a public performance, regardless of the surroundings of the destination . But this definition is, of course, patently ridiculous.
Re: Re: Re:2 wha constitutes a public performance has been execessively broadened
Huber, not really. Considering a streaming video of an concert being watched by 1000 people in their homes. Was each of them in a public place? Nope. Was it a public performce? yup.
“telephone wire” is enough to tell me that it could be a single person anywhere and it is still a “public performance”.
Re: Re: Re:3 wha constitutes a public performance has been execessively broadened
Was it a public performce? yup.
“Yup” only if you agree with the tortured logic of ASCAP’s definition. Do you?
Re: Re: Re:2 wha constitutes a public performance has been execessively broadened
Yea, that’s pretty much exactly what I’m saying. The definition of what is considered a “public performance” is way too broad.
Re: Re: Re: wha constitutes a public performance has been execessively broadened
Gave it some more thought and here’s what I’ve got.
A stream is considered a public performance not b/c it fits the definition, but out of necessity. A stream is generally free, just like radio, and salient, again like radio; while a download is paid-for and permanent. Thus b/c a stream is similar to radio-play in a certain sense and not paid for, it it is subject to public performance payments.
Now let’s apply this to video games. Very few video games are streamed. And video games are played in the privacy of one’s home, EXCEPT arcade games. If ASCAP argued public performance with arcade games, that’d be somewhat reasonable. But that’s not the case, and I don’t see how there’s a public performance in a video game. At the same time, we do not pay for the music in the video game (like streaming music), but the cost of sync licensing is bundled into the game’s price tag (thus the songwriter/performer is paid).
I think video games, with respect to public performance, should be treated the same way as movies. When a song is played in a movie, for home viewing, there is no public performance, and the songwriter has already been compensated through the sync license arrangement. It seems self-evident that video games should follow this guiding principle.
Re: Re: Re:2 wha constitutes a public performance has been execessively broadened
again, the method of distribution isn’t important.
“the performance is transmitted by means of any device or process”
Thus, putting it in a video game and selling that on a shiny plastic disc is just a means of transmitting the performance.
I’m not sure if the ASCAP does understand what the internet is all about. I deal w/ users all day long and their idea of what the internet does and how it works is just crazy. I spent almost a 1/2 hour today explaining to a manager where I work why “emailing a video” wasn’t REALLY emailing the video.. it was just emailing the link.
She argued with me quite a bit, because she had emailed it to herself and opened it up on another computer. It’s hard for people who understand technology to grasp the people who don’t.. and how much they DON’T understand. I”m of the opinion that the ASCAP probably really believes these things and hears technology terms bandied about and comes up with these crazy notions.
What would Rock Band be without music?
Re: Re:
There are thousands of bands that would kill to get in Rock Band and go into millions of homes. If you think that musicians have any leverage at all, you’re crazy.
That will just encourage game makers to hire musicians to create music for them. Just look at the jacket for GTA.
“I don’t think ASCAP is out of line for arguing there’s a public performance occurring when a song is used in a video game.”
That is just incorrect thinking Fred. A public performance for me, alone in my den; that’s public? When admittedly a public performance is:
A public performance is one that occurs “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”
Does Fred work for ASCAP?
Dont kid yourself, bands were dying for the exposure that RockBand and the likes could give them. Cmon, Kiss….on American Idol…nuff said. I would love to have seen that contract.
Super Mario Bros.
do do do do-do dodo dodo-dodo-dodo do dododo…..
Nobody hearing that opening thinks “Hey that’s So’n’so’s song”. They think “Hey! Mario!”
I’ve heard those notes outside of the game MANY times. I’ve even heard the song performed by a live band!
At no time did I EVER wonder who the actual composer was; nor did I care. That song is, and always will be, from Nintendo’s Super Mario Bros. So who’s getting the fame? Nintendo. Does Nintendo acknowledge the actual composer in the ending credits of the game? It’s been so long I don’t know, but I think so. Either way, I guarantee Nintendo DID pay the person.
So, again, the issue here is NOT about whether or not the artist/composer is getting monetary compensation for his/her work.
The issue is also NOT whether or not the artist/composer is getting recognition, because in EVERY game there is a huge list of credits, just like in a movie, recognizing who did what.
Ok, so the artists are getting paid for their work; and the artists are getting recognition for their work…. So the only question, now, is “What’s the issue?”
how to do it right
But now they’ll come back and whine that there’s no business models for promoting video game music. So let me suggest one.
When the game makes it, or at least doesn’t tank right out of the gate, it’s time to release an album. Then the music pundits will be tripping over themselves to introduce you. “Dave, whose music is featured on the hit new first person shooter musical Gears of Band Camp, has release his latest album Sounds from Dave’s Guitar. Buy it now where ever music is sold!” Then use that success to get featured on the next game soundtrack and when that game is released, you release another album as featured artist of the new hit game. Lather, rinse, repeat.
I came up with that as I was typing it, so like two minutes. I’m sure someone could actually take some time to think about it and come up with a really good one.
It is a total landgrab, rent seeking behavior on the part of ASCAP. What’s next? Paying for a public performance fee for songs playing in my head?
If the game company wants to go ahead and pay ASCAP feeds, then they could. But why should they? Because they like paying more for a “right” that have been getting at no cost? They can negotiate the terms with the composer beforehand, cutting out ASCAP all together. If a composer insists on the game publisher recognizing ASCAP and that the playing of a song is a performance, the game publisher can just choose not to work with the composer.
Thanks a lot for the valuable information about this.
Modern example
Just look at Halo. Great game and great music. Halo probably would’ve been taken down a notch if it didn’t have that fantastic music, but I don’t think many people would’ve heard Marty O’Donnell’s beautiful score if it was just out there unattached to anything, or attached to a bad video game like Azurik.
Advent Rising is a good example too. I personally liked AR and would’ve loved to see the sequels get made. Unfortunately, not a lot of people agree with me and the game flopped. That had great music, music that rivaled that of Halo, but due to the differences in success of the two games a lot more people have heard and can identify Halo’s music than Advent Rising’s music.
Extend the logic
So that means if I have to try a song / level 15 times before I get through it, I have to pay the level designer / composer 15 times over ?
I think it’s fair to say that when whatever contracts were signed at the time, the artists who wrote the songs in Guitar Hero received something in compensation – or more accurately the recording companies did. I am sure they realised people would play their songs more than once. Same with level designers. Do I need to pay an animator for their jump animation every time I use it ?
They seem to think the GFC is a time to innovate in ways to get money off people.
WKRP?
WKRP is one big reason why I don’t buy music anymore (the RIAA suing everyone being another big reason); I’ve never downloaded music either. All of those ASCAP types seem to think it’s “all about them” and they deserve money if someone even mentions a song. They’ll never see a dime from me, either directly or indirectly.
Continuation of a Theme
This is just a continuation of a theme for RIAA and ASCAP. Most people are familiar with the internet streaming royalty rate war that occurred last year and just went into effect. RIAA is currently lobbying in Washington for a law requiring radio stations to pay artist royalties for radio plays (search “performance tax”).
What will the end effect of all this be if it happens? Radio stations, which are barely profitable as it is, will go bust. We will be left with nothing but talk radio, as that will be the only thing remotely profitable for the stations.
And the whole internet streaming royalty issue has already taken a lot of streams off the web.
All this means less exposure for the artist and composers, whom ASCAP and RIAA are supposed to represent. If you can’t get air time, no one knows your name, and no one buys your albums.
With friends like that, why would an artist need enemies?
This entire article is completly off
Copy right owners are granted 6 exclusive rights. The 6th right is “in the case of sound recordings, to Publicly Preform via Digital Audio Transmission.” This applies to any digital streaming or download process. Satellite radio such as XM is subject to performance royalties because it is digital. Analog radio does not have to pay performance royalties becuase it is analog. You might disagree with this law, however it is the law and ASCAP should get payed for this. Any sort of digital transmission of audio constitutes a public performance. ASCAP and every other PRO requires royalties for that. This exclusive right means song writers have the right to get paid on a ROYALTY BASIS, NOT JUST UP FRONT.
It is also important to distinguish between the sound recording and the song itself.
Alleyne does not display any understanding of how the music industry works. The inner-workings of PROs and royalty computation is also highly misunderstood. Double check your facts and read a book or something. This article is 50% opinion 5% fact and 45% BS.
Re: This entire article is completly off
Marcus,
When you watch a movie that has music in it on DVD, is that a digital audio transmission? How about when someone listens to a song off their hard drive in iTunes? That’s definitely digital audio being transmitted, nevermind the transmission that would occur in a download, or a purchase from the iTunes store. What happens if you listen to a digital audio file from your basement, that’s actually stored on a hard drive upstairs, and transmitted through a local area network? Do you require a license from a PRO?
What’s the difference, with respect to royalties, between the digital audio transmission that takes place when you watch a DVD on an Xbox 360 versus when you play a game on it?
It’s an insane, uninformed or incredibly intellectually dishonest thing to say, that any sort of digital transmission of audio is a public transmission of audio. The public part matters.
Just because game music composers conform their music to the game does not automatically mean that game companies should own the music. They didn’t make it, they just paid for music that would conform to their game. Obviously, there is value in having custom music written, so the company could just pay for the act of conforming the music, and a license to use it, not the copyright. This would free the composer up to profit off the music in the future. The game companies are not composers. They do not create music.
wha constitutes a public performance has been execessively broadened
Deependsgame.com Just called me,and Wants to use my 1941 Song,”Dont Sit Under The Apple Tree”,by Andrew Sisters.As that means many Videos the Music goes in.Yes a Artist should be paid for the Game being Completed as meeting its objective.