Game Audio ContractsBy Duane Decker
Audio has always been a huge part of the storytelling and fun factor for games. No matter what platform or how much technology is poured into a game, there will always be a need for composers, musicians, sound designers, voice actors and audio engineers to help create the content that immerses players in a unique and entertaining world.
Some audio directors and sound designers work in-house for developers and publishers. Others provide their services on a project-by-project basis for a variety of clients on a contract basis. By contracting audio professionals (the way the film and television industries have done for decades), developers and publishers can get high quality work without the expense of hiring full time employees and equipping full-blown recording studios. There are advantages and disadvantages to both ways of acquiring audio for a game. But in this feature we are going to focus on the bond that ties the professional audio contractor to a project -- the Audio Contract.
The Contract Itself
The Anatomy of a Contract
The legal contract defines who, what, where, how, when and why. Everything needs to be spelled out in this document to ensure a win-win situation. Although there are variations, depending on who wrote it and the scope of the work, contracts include the following:
- Who the agreement involves. The business name and representative of the contractor (or simply the name of the contractor if they do not have a business license); the business name and representative of the company hiring the contractor; and the addresses of each.
- Services. An overview of the services the contractor will provide (often with reference to specific schedules later in the contract). Also typically defines what rights the company has with regard to retaining the contractor's services.A detailed list of specific services is typically defined in a "Schedule" at the end of the contract.
- Ownership.Defines who will own the work when it is completed.
- Compensation and Payment. An overview of how the contractor will be paid and the rights retained by the company. Specific sums and dates are often defined in another "Schedule" at the end of the contract.
- Warranties and Indemnity. Defines the legal issues with regard to the contractor's capacity to enter into the contract, ability to transfer intellectual property (IP) rights, and duty to obey all applicable laws. The parties also define respective responsibilities if something goes wrong.
- Default/Termination.Defines how the contract can be terminated.
- Confidentiality.Defines how the contractor deals with information that is proprietary to the company.
- Notices.Defines how the contract can be changed.
- Independent Contractor/No Partnership.Reiterates that the contractor is not an employee of the company.
- Services Rendered Deemed Special.States that the services to be rendered by the contractor are unique and have a particular value.The company has the right to have these services performed to the best of the contractor's abilities. If the company should later want/need to get an injunction against the contractor for some reason, this clause will help support the company's argument that this sort of relief (called Equitable Relief) is appropriate under the circumstances.
- General Provisions.Defines the overall legal obligations of both parties.
- Schedules. ("A", "B", "C", etc.)Where the contract is structured as a main document and a series of schedules, the schedules quantify deliverables, define milestones, dates and payments, and also define any other variables not spelled out in the contract.
- Signatures.The contract needs to be signed and dated by authorized representatives from the company and the contractor.
When to Get a Lawyer Involved
Creative types are not usually known for their legal prowess. Even if you have experience with reading and understanding contracts, laws change all the time. Remember that if it is not spelled out in the contract, it's not part of the agreement.
No matter how well-intentioned or nice the other party seems to be, it's good policy to have a lawyer that specializes in your specific field look it over and give you advice. Often, it's not what's in the contract that hurts you down the line. It's what is unspoken or assumed. Informality of this sort almost always favors the party with more power and resources. Generally, this is going to be the company, rather than the contractor.
Once you have found an attorney that fits your requirements, you will need to do some homework before talking to them. You are the person signing the contract, so you need to understand what you are signing. Following these simple steps should save you time and legal fees.
- Make a "scratch" copy of the contract that you can highlight, mark up, take notes on, etc.
- Read through every word carefully.
- If you don't understand something, highlight it and note your question.
- If you don't agree with something, highlight it and note why you don't agree.
- Make a list of questions that you will ask the lawyer (referencing your marked up contract).
- Once the lawyer has reviewed the contract, they can give you their general impressions.
- If there is anything that needs to be changed from a legal standpoint, they will tell you.
- Then go through your list of questions and have them explain your options.
- If you don't have negotiation skills or want to keep legal issues from getting in the way of your relationship with the developer/contractor, let the lawyer negotiate contract issues for you.
Spending the money on legal advice on contracts can potentially save you money in the long run, as well as protect your livelihood.
If both parties have signed a similar agreement that was previously reviewed, it may be tempting to go ahead and do it again without getting the new agreement reviewed. But it's a good idea to be cautious about doing that. It's not that it doesn't work out fine to do this, but laws change and so do relevant deal points.
Before you sign the same form contract again, it's always a good idea to really be sure that the contract is appropriate for the work you are doing on the project. If the contract and the work it covers are really pretty much the same as past work you have done for this client, you will likely incur minimal cost in having it briefly reviewed by counsel.
But in reviewing the contract, there is a good chance that counsel may point something out that you hadn't thought about. And it's much easier to bring up something like this (or walk away from the project) if you are aware of the issue before you start doing the work.
As creative people, we are trained to see situations through one lens. An attorney brings a different lens to the table, contributing insight that extends well beyond the nuts and bolts of the contract language.
All the advice we've given above is another way of stressing the importance of staying aware in the contract process. Your judgment is only as good as the awareness you have underlying it. If you turn off your brain and ignore this stuff, you will eventually find yourself in some unexpected and unhappy situations. On the other hand, if you learn the basic stuff that we've touched on here and you learn to ask for help when you're not sure, you can avoid most common problems.
Audio Elements That Are Defined In the Contract(s)
The Game Audio Budget
The first question that needs to be asked is, "What is the audio budget?" The audio budget is typically created as a percentage of the total development budget. This percentage is based on several factors, the biggest being how important the audio will be to the success of the game. That number is then divided into music, sound design and voiceover categories.
While these are rough numbers, there is now a target to shoot for in the bidding process. Changes in one category will affect the other two, so monitoring all three of these numbers helps to keep the overall audio budget under control.
In most cases, the publisher cuts the checks for audio contractors, but the developer (who is responsible for creating the game) retains creative control over the audio.
Trailers and other marketing materials usually have a separate budget from in-game audio. The publisher is usually responsible for those costs. While it's possible to pull some or all of the audio assets for these projects from the game, there are still production costs involved. When a game has a large budget, high profile composers and sound designers may be brought in to add to the marketing hype and momentum. The style and tone of the audio for marketing projects should match that of the game, however, no matter who creates it.
Owning the copyright to a piece of music or audio means that you have the legal right to use and exploit it anywhere in the world (or beyond, believe it or not!) The "default" definition of a copyright for music or audio is that once it is finished being created, the copyright automatically goes to the person who created it. But there are several ways that music or audio can be created (or purchased) for use in a game. In every case, copyright law is a factor.
Buyout. This is the most common way for a developer to have an original music score composed for their game and is also common in the film and TV industries. In a buyout, the composer is hired to create an original music score on a "work for hire" basis. The contract specifically states that the composer will receive a flat fee for the work and the copyright to the music will belong to the developer. The developer is then free to use the music in whatever way they see fit, including exploiting the material in other ways such as soundtrack albums or game sequels.
The contract will define exactly how much music is to be delivered for the game. This definition is typically defined in total minutes of music, although we have seen variations to this when there are a large number of separate cues involved.
If a music cue is created but, for whatever reason, does not work in the game, the cue can either be reworked or an entirely new cue can be created to take its place. If a new cue is created, the copyright to the original cue reverts back to the composer who may exploit it in other ways.
In every case, the composer is entitled to the "composer" portion of public performance royalties. These royalties are independently collected and paid by Performance Rights Organizations (PRO) such as ASCAP or BMI. If there are ever any royalties generated through public performance, the composer is paid directly from the PRO. It is against the law for anyone but the original composer(s) to be paid this royalty, so the developer/publisher is not losing anything. In fact, if they have registered the music with the PRO as the music publisher, they will receive the publisher portion of royalties for the music.
Even in a buyout, there are a couple of deal points that could be negotiable and need to be addressed in the contract.
- Sales Bonuses: If a game sells more copies than the original sales projections (which is part of what the composer bases their bid on to begin with), the composer receives a bonus. Sales bonuses can be setup at multiple tiers so that the developer is only paying after progressively higher sales numbers have been achieved.
- Ports: If the game is ported to another platform (i.e. Xbox to PC or DS to iPhone) the composer is paid an extra fee for that port.
- Sequels: If a sequel is made that uses the music from this project, the composer is paid an additional fee.
The developer needs to be aware that while these deal points may help to keep the initial budget lower, the cost and responsibility of tracking and paying these fees in the long term must be considered. Paying more for a complete buyout ensures there are no loose ends or additional fees.
Music Licensing. Production music is composed and produced for a wide variety of purposes, as opposed to one specific project. It is made available for use in various media through production music libraries or directly from the music publisher. The music is licensed to a client for a specific purpose and scope, and provides legal clearance for its use. The copyright is owned by the composer or in some cases a music publisher. Production music is available in almost every style imaginable and can be an instrumental or music with vocals (a "song").
While this can be a cost-effective way to acquire music for a project, it's unlikely that a lot of separate pieces of music from separate composers will support the story as well, or be as immersive as an original soundtrack. Songs can work well for certain places in the world, however, such as elevators, clubs, restaurants, radios, etc. Remember, though, the more popular the song, the more expensive the license. Original music scores combined with song licenses are fairly common in some genres.
Custom Score License. As a result of tightening budgets, some developers have been making the tough decision that owning the copyright to the music is not absolutely necessary. They want a custom music score that will make the game come alive, but don't have the budget for a buyout. In this scenario, the composer is hired to create an original music score, but he/she retains the copyright and is free to exploit the music in other ways to make up the difference in creative fees and studio costs.
This is a great way to cut production costs in the short term, but may have consequences further down the road. Since the composer owns the copyright and is trying to make up the revenue that was lost, the music may show up in places that would negatively affect the game IP in the long term. Imagine hearing the main music theme of a game playing in a TV commercial for detergent. Also, if the game becomes a runaway success and there is a sequel, any music from the original must be licensed again from the composer in order to be used in the new game. The contract also needs to be very specific about who owns which rights if control of the IP changes hands.
Adaptive/Interactive Music Scores. Adaptive/interactive music in games is sometimes used and the copyright could go either to the developer or the composer. Even when the music is digitally generated to be non-repeating, the underlying material has a copyright so the same issues with assigning copyright still exist.
The technology to seamlessly change musical backgrounds in a non-linear environment allows for great story support and player immersion. The "score" could be layers of ambient sound design with percussive cues appearing when the action picks up, or a score that is randomly generated inside the audio engine. Or it could be a fully rendered score that uses synced audio layers to change the mood. Any way you look at it, the time and cost of developing and implementing the technology to deliver this type of music score will add cost to the music budget.
Live Music Recording Sessions
It is standard practice in the game industry, as well as TV and film, to create and produce music scores electronically using Digital Audio Workstations (DAW). These electronic scores are often used as the finished master recordings for the games' soundtrack. But when the audio budget allows, the music score can be taken to a higher level by bringing in live musicians to record the material.
In this case, the electronic score is used as temp music for the game and can easily be changed to suit any changes that occur in game design. Once the game design is "locked," the recording sessions can begin.
The cost of live recording depends on the number of musicians needed and the size of the studio required to record them. If you are looking to hire an orchestra, it's highly recommended to book them through a musician's contractor who will handle all of the hiring details for the recording sessions.
Sound Effects (SFX) & Atmosphere
The terms "sound design" and "sound effects" (SFX) are often used interchangeably. In most cases, the "sound designer" is the person who is responsible for multiple audio elements that provide the overall sound of the game. That definition aside, we can break down the various methods of creating or acquiring SFX.
"Custom SFX" are created specifically for one project and are usually created on a buyout basis. The cost is calculated by the number and complexity of SFX multiplied by an hourly rate that is appropriate for the project. Source material for custom SFX can include field recording, foley, electronic synthesis, or elements from SFX libraries that the sound designer has built up over time. These sources are then edited, processed, mixed, etc., to create original SFX that fit into the games' specific requirements. Atmosphere is always created using this approach.
"Stock SFX" can be purchased from Sound Effects Libraries and are usually in the form of multiple audio CDs or data files on DVDs. In order to streamline the production process, all SFX should be transferred to hard drive and some type of database needs to be created to search for sounds using keywords.
While these libraries advertise that they are "Royalty Free," you must read the fine print in the licensing agreement. There could be extra charges associated with releasing a widely distributed game. Just as production music is liable to pop up in other places, so will these SFX.
"Downloadable SFX" can be purchased online individually. This is great when other source material just isn't filling the need, only a few SFX are needed, or when time is of the essence. These SFX are usually royalty free, but again, read the fine print in the licensing agreement.
During the development process, it's common to have temp voiceovers recorded by the team as proof of concept. It's also tempting to leave those in because you have gotten used to them and the team members feel good about contributing to the game. But just like any other form of acting, voice acting requires talent and experience to do well.
Voice Talent. Professional voice actors may be members of a union. The two unions that serve voice actors are AFTRA (American Federation of Television and Radio Artists) and SAG (Screen Actors Guild). There are also talented actors who choose to work without the benefit of a union affiliation. There is a misperception that major market voice talent is automatically better than minor market talent. Both the union/non-union and major/minor market issues are moot points when the right actor is cast for the role.
Professional actors know how to make characters constant across a wide range of emotions, volume and intensity. This has an intangible effect on creating an immersive experience for the player. You want to hire someone who can take direction. This will save money in production costs.
Voice talent is usually hired through a talent agent who will supply the developer with auditions from various voice actors from which to choose. In a typical voiceover recording session, the actor is booked for a period of two to six hours and performs from one to 10 different characters. More information is available on the AFTRA and SAG web sites.
Recording Sessions. A commercial recording studio is the best environment to capture great voiceover performances. The talent, directors and engineer are all comfortable and confident that the sessions will proceed without problems or distractions. At the very minimum, a professional recording engineer and equipment is an absolute necessity.
A lot of money is spent on these sessions and you need to ensure that the results are going to be worth that investment. The biggest factors that affect voiceover recordings are room acoustics and quality of the recording chain (microphone, mic pre-amp, recording media and recording technique). No matter where you record, if the recording sessions are broken up over several separate sessions, be sure to use the exact same recording engineer, equipment, equipment settings and conditions in order to maintain consistency throughout the entire recording process.
Voiceover Editing. Voice recording usually takes place in a linear fashion. Once levels are set and the session gets rolling, the record button stays on. This eliminates distractions and makes it easier to capture great performances. But since games are non-linear, the best take of each line needs to be extracted from this source recording. Those individual files are then edited into their final state. A talented sound designer can make these files sound great using a minimum amount of professional equipment. But because there could be thousands of voice files, the process can be lengthy.
Localization. When a project is released worldwide, there will be multiple language versions of the game. Localization is a highly specialized field because of the creative, interpretive and linguistic processes involved. The voices need to reflect not only the language spoken, but also the culture from which it is derived.
There are very few companies who specialize in localization and the full scope of this subject is best left for another article. But the resulting voice files from localization will still need to be edited and processed exactly the same way as the "native" version. The same voiceover editing methods and rates would apply to these files.
Getting the audio into the game and defining how it works is just as important as any of the other steps we've discussed. Implementation affects the entire audio experience, no matter how good the source audio sounds on its own. This is not a place to cut corners because bad implementation is easy to hear and quick to be criticized.
The person responsible for audio implementation depends on the development team and the contractor. Sometimes in-house staff is a tasked with tying audio to code. Other times, the audio contractor will provide or even insist on providing this service. Regardless of who is assigned to this task, they need to have a grasp on audio theory in order to support the story being conveyed. The final overall audio mix should always be performed by an audio professional.
Audio contractors normally calculate charges for sound design and implementation together for a project. So when comparing rates, make sure that you are comparing the same services since implementation can be more transparent in an audio bid.
Audio Post Production
Audio post production is the process of syncing music, SFX and voice to picture (animation, live action or a combination of both), which are then mixed and mastered back into the picture. It may also entail creating new material and/or editing existing audio material in order to fit the picture. The picture is likely to change all the way up until the very end of production, so be prepared for many late nights and extraordinary hours (as is typical in the audio world). It can be a very complex process and requires experience, skills, talent, and sophisticated equipment to do well.
Rates, Negotiations, and Gotchas
Fees for audio services vary widely depending on the contractor, developer, publisher and the project itself. In fact, no one that was contacted for input on this story was willing to quote even a range of fees charged or paid. Every situation is different. Experience, talent, and professional equipment are likely to cost more initially, but ultimately the results will pay bigger dividends.
But just because a project doesn't have a huge budget, that doesn't mean a talented contractor won't be interested in taking it on. The ebb and flow of jobs for contractors provides developers opportunities to hire great talent at great rates, especially when the timing is right. Holes in the schedule also allow contractors to take on projects in order to prove their worth to the developer at lower rates, which will lead to more work for them down the road.
There are a few other factors to keep in mind however, when negotiating a contract.
- Large numbers of short music files take longer to create than fewer but longer files. For instance, if one three-minute music cue can be produced in two days, but only four 30-second music cues can be produced in two days (totaling two minutes of music), there can be big differences in studio/creative time.
- Time spent creating and/or editing SFX can vary widely. In general, custom SFX and long ambience files are going to take longer to produce than shorter sounds such as UI effects. But the experimental nature of sound design does take time to do well. Be sure to consider this in the schedule.
- As the game design changes, so will the audio. Expect that reworks will be necessary and consider addressing this issue in the contract. Define how many reworks are allowed before extra fees are involved.
- Union talent rates may not be negotiable, but the results of using these talented professionals are usually well worth the price paid. Researching all of the union vs. non-union talent options is the only way to make a good decision about which is best for the project.
- As with most businesses, the more work that needs to be done, the lower the cost of production. Big projects ensure that the contractor has a steadier income for a longer period time, thus saving the time and money spent on seeking out other projects.
- A special note to audio folks trying to "break into games." Your value to a developer is found in the ideas, skills, and talents you bring to the table to make a great game -- not how much cheaper you are willing to work than everybody else. If you try to get your foot in the door by working for free, that is the value the developer will place on your work in the future. Not only have you compromised your own value, but you have also lowered the value of audio for everyone else working in the industry.
The nature of our visual senses makes it fairly easy to express what we like or dislike about the action we see on the screen. But unless you have studied music and audio at the college level, most people find it impossible to quantify why they like or dislike an audio experience. In fact, a lot of game reviews spend little or no time on the subject. Yet, this indescribable perception can make the difference between a hit game and a flop.
While it's tempting to cut corners and let your programmer, who has a garage band, create audio for the game, it is also a very high-risk proposition. There is a reason that audio professionals have studied music and audio, earned college degrees in the subject and have spent countless hours honing their craft. Audio professionals are absolutely passionate about delivering the highest quality audio. It will usually take less time for them to produce the end product and it will minimize the possibility of mistakes that will cost time and money to fix.
It's important for developers to weigh the advantages and disadvantages of audio development methods with regard to their projects. Publishers sometimes have in-house audio resources that can be made available to developers. Developers may have in-house staff that can handle some or all of the audio disciplines for a game. The balance of audio services comes from independent contractors. All of these options come with inherent costs.
The publisher's participation in audio will be negotiated in the publisher's contract with the developer. In-house, full time audio staff employees receive a steady salary and benefits packages and will also need to be furnished the equipment necessary to do their jobs properly. Contractors are licensed businesses and are responsible for purchasing all the equipment necessary to deliver high quality audio and pay for all of their operating expenses (location, salaries, taxes, marketing, etc.), just like any other business.
It's imperative for everyone involved to make sure that these relationships are a win-win situation and add value to the project. When publishers, developers and contractors are satisfied with the terms of the contract, as well as the compensation being paid or received, it removes any layers of doubt so that everyone can focus on the creative tasks ahead.
That's a Wrap
The contract is the full and complete definition of the agreement made between the developer and the audio contractor. Both parties know exactly what to expect from each other and there are no lingering questions. If changes need to be made before the end of the contract (which often happens in game development), an amendment can be added to the contract to address those changes. Just like the original contract, amendments must be put in writing and signed by both parties.
Now the real work (fun) can begin without worrying about the legal side of things. Make a great game!
The following people have graciously contributed their time and expertise to this feature story:
Jacob London -- Attorney
Barry Dowsett -- Co-Founder, Soundrangers
Ken Boynton -- Creative Director, Boyntunes.com
Barry Caudill -- Executive Producer, Firaxis Games
Jerry Shroeder -- Audio Director, Sony Online Entertainment Seattle
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