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The Banner Saga composer fined $50,000 by musicians union

The Banner Saga composer fined $50,000 by musicians union

Tue 10 Jun 2014 7:49am GMT / 3:49am EDT / 12:49am PDT
Publishing

Austin Wintory speaks out against AFM's "prohibition" on game composers

Austin Wintory, the celebrated composer on games like Journey and Monaco, has been threatened with a $50,000 fine by the American Federation of Musicians (AFM) for his work on The Banner Saga.

According to a video recorded by Wintory, his fine is symptomatic of a much larger issue facing any AFM member attempting to work in the games industry.

It all stems from a contract drawn up by the AFM and enacted by its executive board in December 2012: The AFM Video Game / Interactive Media Agreement, which was intended to be a standard document to be used by AFM members, but was ultimately rejected by, in Wintory's words, "every single game developer and publisher and has gone totally unused ever since."

The objection from the perspective of the game companies seems to be rooted in IP ownership. According to a report from Variety, the new version of the contract favoured the composer in terms of music rights, to a degree that the games industry was not willing to accept.

Wintory makes it clear that AFM's 90,000 members were not given an opportunity to vote on the agreement before it was passed, and yet it has effectively forbidden them from working in the games industry ever since it was enacted.

"The net result is that, for almost two years, there have been no new video game soundtrack recordings," he said, apparently without exaggeration. "There is no end in sight to the prohibition of this work."

Wintory was much in demand as a composer following his work on Flow, Monaco and Journey, and he chose to ignore the agreement to create the score for Stoic's widely praised The Banner Saga. Days before the game was released in January this year, Wintory received a letter from the AFM threatening to levy a fine for between $10 and $50,000 for working outside of the union.

"It is specifically because the union has failed to produce an agreement that the developers or publishers of this or any other game has been willing to sign," he said in the video, also claiming that he has been "specifically targeted" over his will to publicly criticise the AFM's management and practices.

"It seems that they are trying to make an example out of me," Wintory continued. "I refuse to live in fear, and I especially refuse to live in fear of my own union.... But this isn't about me. This is about what's right.

"We can't let this art form be ignored, or worse, trampled on by a small panel of people that have probably never even held a controller or sat at a computer and played a game, and are completely out of touch with its community and the amazing people who are making them."

Wintory has sought legal counsel on the matter. We have contacted the American Federation of Musicians for comment.

14 Comments

Sandy Lobban
Founder and Creative Director

314 206 0.7
Popular Comment
Absolute madness. Everyone from the new generation should be cancelling their memberships and moving on.

Posted:3 months ago

#1

Jma
Programmer

22 13 0.6
The article says the union "threatened" to fine between $10 to $50.000, but the title implies he was already fined the full $50.000. Is that correct?

Posted:3 months ago

#2

Jma
Programmer

22 13 0.6
Also, isn't the root of the problem that game companies don't want to give the rights of the music to those that composed it?

Posted:3 months ago

#3

Steve Wetz
Reviewer/Assistant Editor

213 529 2.5
I think the issues here are twofold. One, developers/producers and the AFM are clearly not on the same page as regards the ownership of music created by a composer for a game. Clearly, Wintory has no specific problem with the developer point of view since he is still making music for video games. Without seeing the actual AFM contract language, though, it's hard to know what claim of ownership AFM was attempting to make which was distasteful to video game developers.

The second issue here is the fine itself. I am not sure what the purpose of AFM actually is, how it is making the lives of their members easier or what AFM is protecting composers from. But it doesn't seem like they are in danger of some sort of human rights violation or serious pay dispute (the original purpose of unions). I think some of these unions exist simply because they do. This type of action against a member is a great time to re-evaluate whether AFM actually contributes anything to its members.

Posted:3 months ago

#4

Michael Schiciano
Musician/Composer

7 10 1.4
@ Jma
"The article says the union "threatened" to fine between $10 to $50.000, but the title implies he was already fined the full $50.000. Is that correct?"

I suspect that the threaten comment was strictly in the past, and the headline/implication is the state of things now.

Also, isn't the root of the problem that game companies don't want to give the rights of the music to those that composed it?

From my understanding, the fall out between the AFM and game companies has more so to do with performers of music for game projects not being payed royalties after the matter, and not being as willing to negotiate affordable buy-outs (if any buyouts) for composers/developers/publishers. These factors make it hard for composers (especially those working in the LA area) to work with local musicians, and particularly for the orchestras that are available for recording. I've heard a number of friends from that area remark on how they'd like to use local musicians, but they simply cannot afford the rates being charged, and (moreso) the royalties that are likely expected from the AFM for its performers.

In this case, Austin (who appears to be an AFM member himself) was in a case where he was going to do work on a game soundtrack, which had a budget that did not allow him to use local AFM musicians. This resulted in him using a non-Union ensemble (The Dallas Wind Symphony) to do the recordings. As a result of intentionally using non-Union members for the recording of a game soundtrack, he's being faced currently with this $50,000 fine.

Edited 2 times. Last edit by Michael Schiciano on 10th June 2014 3:22pm

Posted:3 months ago

#5

Michael Schiciano
Musician/Composer

7 10 1.4
Popular Comment
@Steve Wetz
"I think the issues here are twofold. One, developers/producers and the AFM are clearly not on the same page as regards the ownership of music created by a composer for a game. Clearly, Wintory has no specific problem with the developer point of view since he is still making music for video games."

My loose knowledge of the situation is that the issue isn't a matter of ownership, but:
1. Musician/Performer rates during the recording process itself for the music/soundtracks.
2. Royalty payments for those musicians/performers after the matter (i.e., not allowing for a buyout of the recording that would remove the need for paying royalties to the performers).

The AFM is primarily a union focused on the rights of performing musicians. My suspicion is that Austin's membership in it could have been tied with that, or because he was supporting local friends who were part of the union or otherwise, but that seems aside from the case here. *EDIT* Austin in other sites has noted that the AFM covers: "Instrumental Performances, Arranging/Orchestration, Conducting, Sheeting Music Prep (i.e., Copyist work), and 'a few other similar things.'"

http://www.reddit.com/r/gaming/comments/27pc91/banner_saga_composer_austin_wintory_speaks_out/

I'm not even sure what the case of ownership is with the music composed/recorded for The Banner Saga, but it is not relevant here.

"Without seeing the actual AFM contract language, though, it's hard to know what claim of ownership AFM was attempting to make which was distasteful to video game developers."

The loose history I can remember amounted to there being talks between key audio/composers from the game industry and the AFM over special rates and agreements for game contracts that included more competitive rates (compared to EU and Non-Union ensembles) and actual buyouts to prevent the need for royalties. After this agreement was forged, however, the AFM reversed on their position, and made a new agreement. According to Austin's video:

"Several years ago Ray Hair, the President of the American Federation of Musicians put together a Videogame Agreement working committee to develop a new game agreement.

The new Videogame Agreement was approved by the AFM's International Executive Board and went into effect December 2012. This new contract was done without allowing any composers, musicians or any of the 90,000 members of the union given an opportunity to vote on it.

"The new administration, was deeply committed to fixing the videogame mess," explained committee member and Recording Musicians Association (RMA) President Marc Sazer at the time. He also predicted, incorrectly, that "the new agreement should induce employers to sit down and negotiate with the AFM."

Nothing could be further from the reality of what happened.

The end result was an agreement that was universally rejected by every single video game developer and publisher, and has gone completely unused since the day it was created.

For almost two years now, under this contract, no union member has been allowed to work on a new video game soundtrack as a result."


Thus, Austin was able to work with union musicians for HORN, but was unable to secure union musicians for The Banner Saga, forcing him to work outside of the union (and resulting in the above fine).

"The second issue here is the fine itself. I am not sure what the purpose of AFM actually is, how it is making the lives of their members easier or what AFM is protecting composers from. But it doesn't seem like they are in danger of some sort of human rights violation or serious pay dispute (the original purpose of unions)."

The AFM is supposed to be a union that protects the interests and well being of professional musicians (primarily performers, IIRC). This came in the form of negotiation with entities like the record industry or otherwise for things like royalties and better pay/work conditions...but in the case of the game industry, they seem rather unwilling to budge and adjust with regards to the nature of doing music for games, as evidenced by how untenable their agreement seems to be for developers/publishers.

To reiterate, the main sticking point seems to be around the nature of royalty/residual payments - something the AFM seems to demand, but the game industry is not structured around as an industry.

The result is a lot of music work for games that could be going to AFM musicians/performers, but simply isn't due to how prohibitive the costs or other contractual agreements might be.

"This type of action against a member is a great time to re-evaluate whether AFM actually contributes anything to its members."

There have actually been other events surrounding the AFM's stance regarding/against the game industry, most notably by the composers themselves who want to work with the AFM. Unfortunately, attempts to really talk with the organization have not resulted in much meaningful - and an event like this just will make things worse until the AFM actually budges in some form.

Edited 1 times. Last edit by Michael Schiciano on 10th June 2014 2:36pm

Posted:3 months ago

#6

Paul Johnson
Managing Director / Lead code monkey

855 1,112 1.3
Popular Comment
If an artist, any artist, makes something off his own back then he has the rights to do with it as he pleases. If he makes something for someone else on commission, then the payer owns the rights.

Anyone trying to assert anything beyond that is a chancer and a bully. Message ends.

Posted:3 months ago

#7

Darren Adams
Managing Director

242 441 1.8
What a bunch of wankers.....

Posted:3 months ago

#8

Emily Knox
Associate Designer

47 96 2.0
I never imagined a union to be so inhibiting and threatening to it's own members, it's shocking that they would do this rather than work toward a solution to create a contract for their members to create music for video games. Negotiating pay and working conditions in the video games sector is listed on their benefits page: http://www.afm.org/why-join

Posted:3 months ago

#9

Steve Wetz
Reviewer/Assistant Editor

213 529 2.5
@Michael,

Thanks for the education. So much of these legal issues are based in specific contract language and the legal precedents/case law applicable to them. I don't think I actually appreciated that there were different types of lawyers until I had to become involved in a legal proceeding myself. Keeping track of any specific type of law is a full time job by itself.

Posted:3 months ago

#10

Greg Scheel
Executive Game Designer and Producer

5 2 0.4
It would seem that the foundation of the problem is right there in the statement from the AFM lawyer, that somehow no one does anything because they like you, only because they are afraid of what you might do. Which, is a total fail attitude. In the recording industry, that might work, given books like "Hit Men" and other works that expose and reveal the attitudes and behaviors of recording industry executives. The RIAA and MPAA sure seem like a bunch of bribe paying total jerks.

However, in videogames, we are nerf league, not hardball. Bringing a hardball approach to a nerfwar is a total no-no and complete nonstarter. Even given companies like EA, I still don't think that the hardass attitude is all that prevalent, and I do know a few people who work for Capcom and Activision, they are nice guys. At our base, we are still just a bunch of programming nerds, not greedy money sucking lawyers, and we don't play with the mean kids.

"Videogames come from a place of love and enjoyment, not from a place of fear."

Edited 2 times. Last edit by Greg Scheel on 10th June 2014 4:29pm

Posted:3 months ago

#11

Martin Oliver
Sound Designer and Music Composer/Director

5 6 1.2
If you compose music for games or are a game music director, you work within a tight budget, mostly a budget set by publishers/producers who have no idea how much the details of the recording of that soundtrack costs in the real world. They rather try to attach a budget to how much other game assets cost by comparison or a very low percentage of overall game budget.

So we try our best to bring in a soundtrack in on budget, (that'll be used in game, as well as on all advertising for the game worldwide) which means getting the best price possible from every aspect of the recording, including sourcing the best ''bang for buck' in musicians....that's always been part of the 'skill' of job.

This nonsense, prohibiting people having a say in who they hire and where...is ridiculous...it's a buyers market and up to musicians and technicians to understand and work within games industry soundtrack budgets....they are generally not the same as film soundtrack budgets of similar 'quality' scale.

Much as I'd like to pay the musicians as much as they command in other media, games are different...let's not go into the royalty/buy out argument here...converting my career soundtrack sales in the games to the film industry.....I'd have a yacht by now....I don't have a yacht.

Bottom line is....you get what you pay for, quality costs. Punishing composers/music directors with fines for doing their job is ridiculous and I would hope outside the law.

Posted:3 months ago

#12
Who on earth would be daft enough to allow there Union to issue fines to members, the only way that would work if they agreed to it on joining, frankly you'd have to be pretty daft in my opinion to join any such entity with rules like that, guess not everyone reads small print, nonetheless, there members should form a new organisation fit for purpose and boycott the original, a union is there to represent its members not control them, its clearly unfit for purpose, issuing rules without giving members the chance to vote and issuing fines... period, clearly the organisation has become useless, ruled by self-important types, who care more about respecting their "Auth - thora - ty" then the founding purpose.

Edited 1 times. Last edit by Alexander McConnell on 12th June 2014 2:27am

Posted:3 months ago

#13

Michael Bennett
Senior Designer

39 12 0.3
The games industry is like the film industry in the 1930s. It will change eventually.

Posted:3 months ago

#14

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