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Legal News: The Banner Saga composer threatened with $50,000 fine by union
by Zachary Strebeck on 06/12/14 12:02:00 pm   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutraís community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

Unions aren’t often the topic of conversation in video game blog posts, but they are an integral part of the entertainment industry.

Unions aren’t often the topic of conversation in video game blog posts, but they are an integral part of the entertainment industry. Actors, directors, writers and musicians are just some of the many jobs that are governed by unions and collective bargaining agreements.

One member of the American Federation of MusiciansGrammy-nominated composer Austin Wintory is potentially facing a fine of $50,000 from his union for his work on Stoic’s The Banner Saga. Let’s take a look at how this happened.

The American Federation of Musicians:

To date, no video game publishers have become signatories to the new agreement.

The AFM is a union that represents musicians and others in the music field. Membership under the AFM’s collective bargaining means that companies who are signatories must provide certain benefits, such as pension funding, heathcare and overtime pay.

Two years ago, the AFM drafted a new agreement for use in video games and interactive entertainment. To date, no video game publishers have become signatories to the new agreement. Because of this, no AFM member has been allowed to work on the music for a video game since.

Why haven’t they signed on?

Working with union members is more expensive; Wintory notes that recording in Los Angeles would cost twice as much as a non-union job.

According to reports, there were certain provisions that limit what a game company can do with the soundtrack once it is recorded. Working with union members is more expensive; Wintory notes that recording in Los Angeles would cost twice as much as a non-union job in London.

A prior agreement, which was superseded by the 2012 agreement, is described as more friendly to video game producers. Variety reports that some projects are still recording in Los Angeles under the old agreement, since they were “grandfathered in.”


What did Austin Wintory do wrong?

Reports indicate that Wintory recorded the music for The Banner Saga in Texas. Texas is a “right to work” state, which means that those in the state cannot be prevented from using non-union workers.

In Wintory’s own words, in a posting on NeoGAF, he says that:

"The violation I’m charged with is breaking the Bylaws, which cite that I can not “perform services (whether as composer, arranger, copyist, proofreader, instrumentalist, leader, contractor, cutter, editor or in any other capacity) for the purpose of producing, editing or dubbing recorded music except where expressly authorized and covered by a contract with the AFM or when expressly authorized by the AFM.”

Now what?

It remains to be seen whether video game companies will sign on with this new agreement.

According to the AFM’s website, they have just drafted a new video game agreement, that will now be voted on by union members. While reports indicate that Microsoft has joined up, it remains to be seen whether other video game companies will sign on with this new agreement. 

As always, if you are beginning a new game development project, why not get a game lawyer on your side? Just contact one for a free consultation.



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Michael Joseph
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RE: "It remains to be seen whether video game companies will sign on with this new agreement. "

According to their press release, this new agreement is "effective immediately" and Microsoft has already signed on.

RE: "The voting is expected to take up to two months."

By my reading of their press release, the voting is only for members who are already engaged in recordings under the old agreement.

Zachary Strebeck
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Well, Microsoft is just one (albeit large) software company. Will others be as agreeable? We shall see.

Yeah, you may be right on the second point. It is a little unclear to me. I will edit the post to reflect this comment. Thanks!

Bart Stewart
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Surely contract law (which I assume covers signing a union membership contract) and right-to-work state laws have come into conflict before. How have such cases usually been decided? Which interest is most often given precedence, and why?

Zachary Strebeck
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That's a great question that I don't know the answer to :) Haven't had many dealings with union issues. I'll look into it and (hopefully) have a blog post up soon!

Michael Kelley
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AFAIK (not a lawyer) right-to-work means workers cannot be compelled to join a union as a condition of their employment. The only contracts it would affect are contracts that compel the employee to join a union (which isn't the case here it seems). State law would take precedence unless the contract predated the law.

Zachary Strebeck
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Well, if the person in question willingly entered into the union contract, wouldn't that trump the fact that they are "allowed" to work non-union in other states? I'll have to look into this a bit more.

Lex Allen
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The whole situation is absolutely outrageous. I think the real solution is for no one to join the AFM in the first place.

Zachary Strebeck
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Well, in this case, Wintory does plenty of non-video game work. Not being part of the union would lock him out of many of those jobs. It's kind of a catch-22. The real solution is for the union and the industry to come up with a workable solution. We'll see if this new agreement meets that requirement.

Alan Barton
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"I think the real solution is for no one to join the AFM in the first place. "

That is totally the wrong angle. A better solution is for the game publishers to become signatories, but that means they have to provide "pension funding, heathcare and overtime pay." ... and we all know many companies will not want to do things like pay overtime, because it will cost some directors money which they had planned to take for themselves as big bonuses.

I know it sounds wrong that the AFM has gone after one of its members, but then the idea is for everyone to stand united against the companies that seek to undermine workers rights, so I can understand them being unhappy with effectively a strike breaker.

The bottom line is many games companies won't want to provide "pension funding, heathcare and overtime pay." so they won't sign up to provide better conditions. They will resist for as long as they can.

This battle could help improve the working conditions for us all.

Zachary Strebeck
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I wonder how likely those reforms would be, given the consternation about budgets that is already happening. And this is only the musicians! Extrapolate this over the entirety of production, and it will take a lot of leverage to get video game companies to agree.

Michael Brown
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@Alan- This makes me wonder about smaller studios, though. What if a company is simply too small to provide all of these benefits? The obvious answer would be to hire a musician that isn't unionized, but then what if the unionized musician is truly compelled (or simply needs) to work with this studio? I can see how that could become a really crappy situation.

After all, Stoic doesn't sound exactly as impressive a company as, say, Ubisoft. Perhaps I'm wrong, but even a greedy director probably wouldn't have much to hold on to over there.

Alan Barton
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@Michael Brown: "This makes me wonder about smaller studios, though"

Its often hard for a start up but in general its a case of don't confuse start-ups where a few friends getting together to form a company, with a lot of the established small studios that have been around for a few years. In my experience with many of the small studios that have been around for a few years, I've lost count of the number of bosses who have played the "we have no money" card, only for me to find out later they had way more money than they wanted to let on. I've even heard it from multimillionaires!.

I found these kind of companies are in one of 3 states, when it comes to discussing pay and pay rises. i.e.
State 1: "We have no money this year, as we have had big expansion costs this year ... but when things improve, you can have a pay rise"
State 2: "We are breaking even this year, so we can't pay any more money this year ... but when things improve, you can have a pay rise"
State 3: "We are loosing money, so be thankful you have a job ... but when things improve, you can have a pay rise"

The key thing to notice is there is never a state where they pay more. Then later you find out how much money they really have, where everything they say above, is all just talk to get out of paying extra. For example:
(1) Two bosses I worked for in one company cancelled the Christmas party as they said they had no money. (The Christmas party was going to cost them about $1500). Then both of them drove into work just a few weeks after Christmas, both with new cars on the same day! ... and both cars were worth over $80000! each. So suddenly they could spend $160k on themselves, but they couldn't find $1.5k on thanking the staff for working hard for a year and no one had a pay rise for a few years at that point!. Evidently thanking staff was beyond their ability to consider!. (And both bosses were multimillionaires!).

(2) In another small studio where I worked as the only programmer on their only project, I couldn't be given a pay rise the whole time I was there (about 2 years) even though my game earned them enough to afford to hire over 40 new staff in one year! ... and they even used my own engine for free as the core of that game I was the solo programmer on! Also the success of my game won them a 2nd deal with the same publisher, because the publisher was very happy with my game! So I made their company!. Without me they couldn't have built a company! I was even able to deliver their first milestone 2 days before I was due to start at their company!!! ... I came into their offices 2 hours before their milestone meeting with the publisher to pretend during the meeting I was working on their project!!! (The company I was to work for had emailed me 2 days earlier a 3d character model, so I got a character walking around on screen for them for free, which was enough to impress their publisher work was being done on the project! (this was in about 1998) ... Anyway they didn't have money for a pay rise for me in nearly 2 years during all of this work I done for them! (And I was working crazy hours and weekends for free for them).

(3) In another company I listened with interest as the boss stood in front of everyone to tell them they couldn't have a pay rise again, even though some of them hadn't had a pay rise for nearly 3 years ... and this was minutes after he told me about his custom modified Ferrari he was having some work done on worth $560000! ... he told me I guess because I had only just started at the company, so the pay discussion didn't effect me, but it was fascinating to listen to!.

(4) In another company I was the 4th member of staff in the company yet my pay hardly changed in 6 years of employment, even though in that time we grew to over 60 employees. When I left I went into a new job with a $15000 pay rise. That extra $15k wasn't because it was a well paid job, it was the current industry going rate for the job! ... my money in the previous company had been kept down year after year where the gap had widened to $15k! ... how much had I lost in total during 6 years! ... and during these 6 years I had worked on two projects where we worked over 100 hours a week (7 days a week) for months at a time! (18 months on one project!) ... my record was 125 hours in one week!. I even had my own company sleeping bag where I slept under my table! (This was in the early 1990's, things have improved a bit since then!).

I could go on, but you can see the pattern. A lot of veterans in this industry will tell you similar things. When you are younger you can often take a lot of employer abuse of your trust as you don't know what is really going on until later, when you learn the truth. Then they get in more younger employees to play the same tactic on them.

Frankly Bosses are negotiators. They don't want to pay out for anything they can get away with not paying. These people are negotiators by profession and negotiating their way out of paying people money is easy for them. You don't get paid what you are worth, you get paid what you can negotiate and the only way to get a better deal, is to have something they want, which then gives you some leverage over them to force them to pay better. They will complain bitterly and say everything they can to get out of paying, but its the only way.

Lex Allen
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The gaming bubble has popped. Studios are closing and everyone is getting laid off. Very few studios can afford to pay for "union" jobs.

Zachary Strebeck
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@Lex Allen

I think you are overstating it just a bit...

And the only union jobs at question here are for musicians working on video games, who are also members of the AFM. As far as I know, video games are still getting music without the union members. They're simply going where it is non-union. Many films do the same thing in order to cut costs. The onus, I suppose, is on the union to provide an agreement that works for all parties.

Zachary Strebeck
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@Alan Barton
While I understand what you mean, and I have experienced the same in my various careers, there is a difference between company money and the boss's personal funds. If they are co-mingled, that is a problem. There are specific budgets for things, and if one cost goes over, it's gotta be made up somewhere. The boss certainly isn't going to deduct from his own salary, just like you wouldn't want the boss deducting your salary.

However, I do empathize with the feeling of seeing what should benefit the entire company (something like a holiday party) not exist while the new car shows up in the executive parking spot. Heck, look at the recent news about Zynga's financials being terrible and Mattrick making $57 million his first year there. It's almost like they live in another world entirely!

Alan Barton
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@Zachary Strebeck: "only union jobs at question here"

Change happens slowly. That is life. But even just some change caused by one union holding out against the games industry is a step in the right direction and I was saying that change in general is required. This industry has an appalling record of example after example of employee exploitation which has been occuring year after year for decades. So this industry needs to finally grow up and so take its employment responsibilities more seriously. So any attempt to move the industry in that direction is a help.

@Zachary Strebeck: "difference between company money and the boss's personal funds."

That difference doesn't negate what I said.

Also company money and boss's personal funds vary inversely. So its illogical to argue the company doesn't have enough money when a boss chooses to take most of the profits and put it in their personal bank account. But that is exactly the kind of flawed illogical thinking that some bosses try to use.

Zachary Strebeck
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@Alan Barton

RE: Unions
I don't disagree. Putting some control in the hands of employees over wages and hours in the game industry can only be a good thing. The status quo is pretty terrible and embarrassing for the industry.

@Alan Barton

Well, I suppose you need to look at why the boss started the business in the first place. To provide employee benefits? Or to make money? It's all a balancing act, and it seems like you got the short end of the stick in the cases you mentioned. But I stand by what I said; there is a separation in a properly-run business. If assets are being co-mingled, there may be issues with the corporation, etc. That's a whole different subject, though.

Alan Barton
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@Zachary Strebeck: "Well, I suppose you need to look at why the boss started the business in the first place. To provide employee benefits? Or to make money?"

If the employer wants to make money on their own, then they are free to make a game on their own. :)

Point being, most employers can't make games on their own. So most bosses need the skilled services of employees to make their products. Therefore the bosses can't "make money" without some "employee benefits" and the need for employee benefits is true in every industry.

Also if a boss wants to believe its just about their need to make money, then that is frankly a very clear indicator of a narcissistic mindset and narcissists often suffer self deception as they are so self interested. Its part of why this kind of person lacks empathy for others, because they are thinking about themselves so much, which is why they resent employee benefits so much. Which is why their behaviour results in self-interested greed. They need to be shown they need others, but then narcissists don't like being dependent upon others, hence the up hill struggle negotiating with this kind of person. But then any negotiated position will be undermined over time as soon as they get the opportunity, so any deal with them will be short lived. Ultimately if they are narcissistic, then they can't be trusted to treat others fairly, because they won't be fair.

But then bosses need the skilled services of employees, so the bosses have to be fair. So if some bosses don't want to be fair, then fairness needs to always be defended and preserved, because otherwise inherently unfair narcissistic people would undermine fairness if they had the chance. But then history shows workers rights fairness has taken centuries to get it even this far and the behaviour of self-interested people shows they would take it away again if they had the chance, so its an endless struggle to even just maintain some fairness.

@Zachary Strebeck: "there is a separation in a properly-run business"

Its not an issue of co-mingled assets, its an issue of greed.

They can cleanly delineate assets, that isn't in question.

Its the percentage of assets that is taken from the company to then claim the company has no money. That is the problem.

Bottom line is too many bosses don't want to pay fairly for work they profit from. Its as simple as that.

Of course they rarely express it so openly and honestly, but that is ultimately what happens.

Jacque Cousteau
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Communism/Socialism at its finest. ;)

Michael Joseph
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when free people voluntarily decide to work together for their mutual self interest that is communism/socialism?

John Trauger
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This incident nicely focuses both the good and bad to unions. (not a lawyer either)

Unions improve pay and working conditions for their members (good), therefore drive up the cost of production (bad). The real bad part occurs when unions have a sufficient stranglehold on labor to dictate terms. What ends up happening is what we've seen or are seeing in other industries. Jobs move to where labor is cheaper, are replaced with automation , etc.

A union like AFM has to crack down--hard--on major infractions of its by-laws in order to be able to operate. If I can get an AFM musician without paying AFM prices, the AFM ceases to be relevant and the benefits it provides to its members erode rapidly.

If Microsoft has signed on with the AFM, MS has not only agreed to pay AFM rates and benefits to musicians, but it has undoubtedly also agreed to only hire AFM-affiliated musicians. A musician working for MS would be compelled to join the AFM.

That's where a right-to-work state like Texas comes in. Within the boarders of the Lone Star State, a musician could not be compelled to join the AFM. But that doesn't mean that the AFM can't retaliate against MS in any legal way allowed by its agreement with MS.

Same with Austin Wintery. Working in Texas doesn't insulate him from the by-laws of his union unless Texas law somehow provides a shield that is effective outside Texas. The union can't demand anything from Stoic but they can penalize Wintry.

If recording in LA as much as doubles the cost, maybe you DO want to record in Texas. If you look closely at movie credits, you'll see more filming done outside LA and outside the US. That's a symptom of high cost in the LA/the US, to which entertainment industry unions contribute.

You can see the effects of unions on the auto industry for example. Car companies have highly roboticized assembly because human labor was so overpriced that it became cheaper to replace them with machines who didn't need overtime, health insurance or a pension. Other industries have simply fled the US. Do we even *make* steel in the US anymore?

The more expensive you make an employee the more incentive you give the employer will look for a cheaper alternative.

It's not like we haven't seen this in the game industry with art and other work farmed out to overseas production houses, or companies hiring people as temps through a service instead of as employees.

Zachary Strebeck
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@John Trauger

Excellent post. Thanks for your input. I don't really have anything to add!

Michael Joseph
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"Car companies have highly roboticized assembly because human labor was so overpriced that it became cheaper to replace them with machines who didn't need overtime, health insurance or a pension."

Human labor is ALWAYS overpriced as far as the capitalist is concerned. It's just wrong to suggest it's objectively overpriced. Customers are partially to blame as well. Most no longer care about "Made in the USA" and are perfectly willing to sell out their country (just as the capitalists through outsourcing or shipping off of factories ) by purchasing cheap goods made in countries that have little or no worker protections. And where we spend our money is the only real power we have... because it's not in who we vote for.

It's really not all that complicated. We worship money and the wealthy and so we don't like the lower classes. We allow trillions of dollars to avoid being taxed and as Alan Barton talked about, we believe them when they say they have no money. This is why I talk about employees needing to be more savvy and learning to game the systems that are gaming them. Capitalists treat their businesses as a game and the name of it is PERSONAL ENRICHMENT and the companies they own or work for are devices to serve that end. Do you think Mark Pincus and Don Mattrick care about games?

They don't care about art. They don't care about social responsibility. They don't want to pay taxes. They don't want to pay their workers anything more than they have to and they are always working to "have to" pay less. Employees at the bottom need to learn that they can do the same thing. Employees in such workplaces should be treating their position as a personal enrichment device first and foremost. But the same people who believe it's ok for owners to not care about workers, want workers to care about the work they are doing and the company they are working for. If they don't care about you, you'd be a fool to care about them.

the dirty little secret is, to an extent we already do this. we just haven't allowed ourselves to be consciously aware of it. Because often when we talk about doing something to increase sales, we start to construct and perpetuate entire webs of dishonesty... ensnaring teams, customers, ourselves. When we talk about needing to keep our jobs to keep up the mortgage payment, we test our own character and we often fail when our job demands that we do things we don't feel right about doing. the job and the money already mean more than the work, still we maintain the illusion that the work is good. The world functions despite the greed at the top because the people at the bottom are having whatever integrity they can hold onto, exploited.

Alan Barton
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@John Trauger: "Jobs move to where labor is cheaper, are replaced with automation"

That will always happen. When a business person needs a service, they must pay, so they will seek the lowest price they can. When they need that service again, they re-evaluate what is the best price they can get. If its cheaper for them to get that service elsewhere than the service you provide, you will often find bosses will "restructure their business" meaning they will throw you out to find that service cheaper elsewhere.

With that kind of mindset, jobs will always move to where labor is cheaper and even be replaced with automation. We see that in the news all the time.

It means many jobs are really short term. You only get what you negotiate at the time you negotiate it. You can't trust in it staying good for you, even if you negotiate a good deal.

Unfortunately that is the reality of a lot of jobs. Of course one vital word is missing from that above description and that word is "Loyalty".

The word Loyalty is probably one of the most over used words in business. As employees we are told so often by bosses that they expect loyalty from us. We are led to believe in it totally. We are told we are working to build a future for all of us. We are told we work as a team for our future. The words Future and Loyalty are irrevocably intertwined in our minds. Which is why its such a shock to us when we find ourselves suddenly made redundant. Employees are lead to believe they are building something for their future. Unfortunately all too often they are not. Of course this misconception is often created by some bosses trying to make staff believe they are investing in their future. In too many companies they are only investing in the bosses future.

But then if employees were told you are not investing in your own future, many wouldn't choose to work for these companies. They would find a company where they efforts were investing in their own future. That is the awful deception most employees suffer time and time again in jobs.

Its vital to see how often "Loyalty" is not reciprocated in many companies.

The two most likely solutions to this problem are either we start our own companies and take the profits for ourselves or we stand together against employer disloyalty and that means a union. But then unions have been so demonised in society these days, that few people think of standing together in a union these days, which is exactly how bad bosses want it. They want to divide and conquer us, to force wages down and they have.

I wish I could find a good boss to work *with* not work for. That would be a good 3rd option. But how likely is that really?

Or alternately option 4 would be to get out of this industry altogether into a more mature professional industry that treats staff a bit better.

@Michael Joseph
I do think we would be best served by working to find the best way to start our own companies, so we can take the profits our work creates. Rather than have the profits taken from us, by such unfair ungrateful employers as we keep finding in our industry. If they won't be fair, its time to side line them and exclude them and take the profits ourselves. Step one is wising up to how they are really treating us to see our loyalty to them all too often isn't reciprocated.

James Coote
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So, I'm sat here in the UK. Say I contract out the work to create music for my next game to someone living and working in the USA who is in this union. The contract specifies the territory/jurisdiction of the contract is in the UK. And I don't have any agreements or whatnot with this union. Would that musician then face the same problems as Austin did in this case?

Michael Kelley
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AFAIK (not a lawyer) he/she would, since they've a separate contract with the union. That's my reading anyways.

Zachary Strebeck
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@James Coote

It's very possible. Though it's up to the union to dole out penalties under their contract. There might even be a case against the developer who hires them, if they knowingly hired union labor and did it in bad faith (interference with a contractual relationship -

Of course, without knowing all the facts, this is just conjecture.

Austin Wintory
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Thanks for the post! A few comments / corrections:

- Working with British musicians entails working with their musicians union. They just have different contract terms than the AFM. It's a seemingly small distinction, but I mention it because many people have presumed my response to all this as indicative of an anti-union sentiment. This is not the case.

- The cost difference, while extreme and difficult to budget for, was ultimately not the straw that broke the camel's back. Obligating the producers, especially a studio like Stoic (which was founded effectively by Kickstarter dollars) to royalties simply wasn't possible. I could not, in good conscience, recommend that to them when I know how much they sacrificed in order to make The Banner Saga. This is why I resolved myself to find better options. If I'd purely wanted to save money on wages, I could have either not used any live players (I have very good sample libraries!), or recorded somewhere like eastern Europe where it's very inexpensive. The Dallas Winds were paid exactly in line with the previous game agreement.

Fingers crossed the new agreement brings at least SOME work back to the AFM!

Zachary Strebeck
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@Austin Wintory

Thanks for your input!

I was going by what Variety reported RE: cost increases. I will edit the post to reflect the royalty issue.

I wasn't able to find a copy of the old agreement that no one wanted to sign up with, only the new one that is posted on the AFM site. I'm curious as to the exact changes that were made. There still seem to be some limitations on IP ownership remaining in the new one. Know where I could find a copy?

Austin Wintory
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The new agreement strikes a balance b/w the 2012 agreement and its predecessor. They offer what is more or less referred to as a "Franchise buyout." It basically lets the IP use the music freely within (sequels, prequels, TV/film spin-offs, trailers, commercials, etc) but doesn't permit (without new-use payments) re-licensing into other media unrelated to the IP.

For many publishers that's good enough (Microsoft clearly an example). For others it won't be.

Zachary Strebeck
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Yes, we'll see how well they do. Do you find that competition with non-union composers, etc. makes it difficult to get work in the field?

Larry Carney
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I wonder how this ordeal has or has not added to the discussion amongst others in the industry about whether or not to unionize their fields? It is usually an ethical debate or one of economics, but with this article sharing some of the legalities involved with belonging to a union, I wonder if that would be a discussion others in the industry are beginning to have?

Zachary Strebeck
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It's certainly a discussion worth having. And it certainly won't be done with the permission of the game companies themselves. It's going to be a massive undertaking that will hurt a lot for a while, that's for sure.