Commentary on the American Federation of Musicians with update from Austin Wintory
By Ryan Thompson
On June 9th, composer Austin Wintory posted a video, announcing that he is facing a $50,000 fine from the AFM (American Federation of Musicians) union of which he is a member. Wintory shares that because of a lack of a contract between AFM and game developers, “For almost two years now…no union member has been allowed to work on a new video game soundtrack as a result.
…After having successfully recorded the iOS game HORN with AFM musicians, I attempted to do the same with THE BANNER SAGA. The unusable contract forced me elsewhere, and I soon found the remarkable Dallas Wind Symphony. This collaboration happened as a direct result of the AFM’s unusable contract, and I am now being punished for simply doing my job under those circumstances.”
By coincidence, the next day on June 10th, AFM announced that they had reached a new agreement with Microsoft. That agreement, which was reportedly in talks for 18 months, allows for the sort of buyout that the game industry was pushing for. It did not address all of Wintory’s concerns (to say nothing of his $50,000 fine — I reached out to Wintory, whose comments follow this blog post), but is a good signal that many of us should soon be finding games with orchestral musicians again soon.
I argue this sort of arrangement — both Wintory’s situation and the union politics underpinning it — are important for media scholars to be aware of. It falls under the broader umbrella of an issue largely solved within academia but remains an important question in other circles — whether or not we recognize games as a unique art form separate and independent from film and other media. Part of that recognition includes separate legal treatment differing from other media, as Wintory points out in a YouTube comment:
“…secondary market-based royalty is rejected by the game industry because there is no secondary market. In film, if you’re released in theaters the subsequent DVD release would be the secondary market, and AFM musicians (under the motion picture contracts) make 1% of those secondary market grosses. But games sales are the one-stop transaction. One might try to argue that ports or remasters are secondary markets, but I’d actually disagree. More like parallel primary markets. There is no equivalent in games to a film coming out in theaters and then, say, airing on cable a year later. As a result, the upfront risk for game studios is MUCH HIGHER than for film companies because all their eggs end up in one basket (this is a definite weakness in the business structure of the game industry, as reported by the rampant post-released layoffs lately). Given that there are many, many viable options for royalty-free recording (including very high-end expensive options in London which are regularly used), there is no need to for publishers to deepen their already-huge risk so they refuse to accept these mandatory royalties.”
I first thought of Final Fantasy X HD Remaster, the soundtrack of which I had the opportunity to discuss in a more pleasant context. Some of the tracks are the original audio from Final Fantasy X, some are remastered, some are re-recorded, and some are re-orchestrated — all of which require different legal treatment. As Wintory points out, the concept of the re-release is common to film, in which it’s not difficult to track down someone who owns the same movie across multiple formats — VHS tape, DVD, Blu-Ray, and a digital download, in addition to having gone to see the film in the theater (perhaps even more than one theatrical release, for a property like Star Wars).
Wintory is correct that the idea of a (post-launch window) port to another platform a la FFX HD is very rare — of the thousands of Playstation 2 games, only a select few have been re-released for modern consoles. Compare the list of PS2 franchises that have received similar ports (God of War, Final Fantasy, Metal Gear Solid, and the two Team ICO games) to the number of films available on both VHS and DVD. Game developers often hope but cannot plan for their games to be as successful as these titles. As Karen Collins warned many of us during her keynote speech at the North American Video Game Music Conference this past January, defining the entire gaming industry by a select few AAA titles is not viable in the longterm, neither for our own scholarly efforts nor for making legal decisions about a giant industry.
Though the agreement that was reached with Microsoft will work for many large studios, based on the numbers in the Variety article linked above, it remains unclear how the burgeoning indie development scene will be able to effectively utilize union musicians for their games. It does seem that legal teams supporting both the AFM and game developers are realizing that games should be treated on their own terms. While not an ideal arrangement yet, having a place to start allows game development to function and musicians to do their jobs. Games continue to cast an ever widening net — as they become an increasingly important part of our casual and social spaces, they will require more and more consideration from all perspectives.
P.S. As mentioned, I reached out to Wintory for comment, and he offered the following, largely agreeing with my assessment of the situation. No word yet as to his personal situation, though it’s important to keep in mind that 1) It remains a personal matter, so we should not expect any further updates necessarily — and 2) It is only tangentially related to the underlying point at hand as I interpret it above.
I will add that I think the Microsoft agreement has very little chances for widespread success. The most it offers is the so-called “Franchise buyout,” which some companies (Microsoft, Blizzard) are ok with, but others (Sony, EA, etc) are not. Further, I think indies are unlikely to accept anything but a full buyouts, because they are put at financial risk in a way that’s out of proportion to their efforts. Why would a company like Stoic (developers of The Banner Saga) be willing to put themselves at risk for total bankrupcy (which unexpected new-use or re-use payments could trigger), over the music in their game, whilst having total unencumbered control over every other aspect of the game?
For mid-range studios I can sort of imagine that being acceptable risk (5thCell, or Double Fine), though I know they default to full buyouts. But it’s nonetheless a more acceptable proposition than to small indies who don’t have the administrative manpower to oversee AFM contracts.
So, I have hope for the Microsoft agreement, but only because I’m an optimist. Unfortunately the AFM’s behavior seems to only deepen the conviction that they are woefully out of touch, and disinterested in a long-term relationship with the game industry.