Composing Music for Games and Work for Hire: Deal... or No Deal?
Updated: Apr 8, 2020
There is a common thread that sometimes runs around composer’s groups, whether on Facebook, forums, blogs or other real or virtual communities of composers. It goes something like this:
“Work for Hire is EVIL. Never compose under Work for Hire. Doing so forfeits the rights to your music, and by doing so you’re losing out on all the income that music can produce for you over the years.”
Before we discuss the wisdom of that philosophy as a media composer, let's talk about the TV game show, Deal or No Deal.
In case you don't know the show, the rules are simple. There are 26 briefcases, each containing a different amount of money ranging from $0.01 to $1,000,000. No one knows how much is in each briefcase, but most contain less than $1000. A contestant picks one briefcase out of 26 and it is set aside. A mysterious person known as “The Banker” offers the contestant money for their briefcase at various times during the game, and the contestant decides whether or not to accept the offer and hand over the briefcase (“Deal”) or to reject the offer and keep their briefcase (“No Deal”).
That’s all nice, you’re thinking. But what on earth does this have to do with composing music for video games or film and “Work for Hire?”
When you are asked to compose for media under a Work for Hire (WFH) agreement, you are being offered money upfront for the current AND potential future income of the music you compose. Here's the rub.. You have no way of knowing what future income that music might generate—just as the player in Deal or No Deal has no idea how much money is in their briefcase. And, just as in the game, someone is offering you money, guaranteed, on the spot, for that music.
You now have a choice: Take the Deal and 'give away' your music, or say "No Deal" to the gig.
While it can be emotionally satisfying to 'keep your music', focusing on music ownership can place too much emphasis on some distant, future potential income at the expense of building your career.
For better or worse, the vast majority of ‘music for media’ (games, film, TV, etc.) is composed as Work for Hire. According to the Game Audio Industry Survey 2015, 97% of large-budget game titles’ music was composed under WFH, as well as almost three quarters of smaller games. Most movie scores are as well. So if you are interested in a career composing music for media, handing over the rights to your music in a Work for Hire agreement is something you need to become comfortable with. I've written music for somewhere around 140 games and with only one exception, it's all been "Work for Hire."
If you want to earn a living composing music for games or other media, you have to be careful about focusing too much on “the tail” (hypothetical future income), instead of “the dog” (your composing career). It may be much better for your career long term to focus on the gig, taking The Banker’s offer and start composing some great music, and not worrying "gosh, if the game is a huge hit, and I had kept ownership, I'd be making tons of money!..I'll get screwed!"
Are there situations where you SHOULD keep ownership of the music you are asked to write? Certainly. If you are dealing with an independent developer/producer and they have little/no budget, you can negotiate keeping the rights. Though even then, there may be cases where the best thing is to simply do the gig, create some great music, make some contacts, and move your career forward.
It is important to remember that not all Work for Hire contracts are created equal.When you are given a WFH agreement, read it carefully and NEGOTIATE. A good WFH contract will let you do at least some of the following:
Guarantee you public credit as composer in the end product
Register your music for any potential PRO payments
Allow participation in soundtrack sales or other ancillary uses
Give you the right to use the music on your web site/demo reel
Allow you to use the product name/logo on your web site and demo materials
Provide 'right of first negotiation' for sequels
Provide for additional payment for sequels
Hire musicians under a separate budget
So don't just sign a WFH automatically--there are still items to be negotiated, even in a WFH contract; "Work for Hire" doesn't have to mean "bad deal."
Contestants on "Deal or No Deal" end up so focused on what might be in their briefcase, the completely lose track of what they actually are being offered. Psychologists who have studied the show say it's because contestants imagine their briefcase to contain a million dollars, so they easily reject $50,000 for it. But what if they instead imagined their briefcase contained $1,000? Or a penny? Or $25,000? Suddenly that same $50,000 doesn’t seem like such a bad offer.
Don't get so obsessed with the "What if's" and "I'll get screwed's" of Work for Hire that your career spins in circles. Get out there, don't be hesitant to sign a (good) Work for Hire contract, and get composing.
So… When you are offered a great game or film gig, but they require you 'give away your music' under a Work for Hire agreement, what will it be… Deal?..... Or No Deal?
Postscript: Why do companies require “Work for Hire?”
“Work for Hire,” isn’t inherently evil, and doesn’t exist solely to allow giant corporations to screw over composers. When creating the copyright laws, congress—for better or worse—realized that some types of creative works, particularly those involving significant collaboration, would be unmanageable if every single contributor maintained a bit of ownership in the final product.
1960: “(If copyright were vested in the numerous team members, third persons wishing to use the entire work would find it cumbersome to deal with all of the employee-authors. Moreover, it is with respect to such works that the contribution of the employer in assembling the group, furnishing the facilities and directing the project is especially significant.”
So for many types of collaborative works including “a motion picture or other audiovisual work,” the notion of Work for Hire allows a single entity to own the end product.
It also helps to look at things from the game developers (or director’s) perspective.
As we know well, music can be a powerful branding tool for a game, film or TV show. Music, like other aspects of the property, can be immediately evocative of the feelings, mood and title. Companies may spend millions developing that brand.
Now suppose hypothetically, there were one element of the game (the music) which you as a company didn't have any control over—the composer owns the music because it was not composed under "Work for Hire." In that case, there’s nothing to stop the composer from licensing it for a movie trailer. Or a Cartoon Network show. Or a bathroom tissue commercial. Or a propaganda film. You get the idea. So it's reasonable that a game maker or film producer would want to ensure that didn't happen.