There’s no more brutal opponent than elevated expectations. At least, that’s one explanation for the recent meltdown of the triple-A music gaming franchises. Harmonix, company that gave birth to the modern instrument genre saw both of its creations hit hard times in recent weeks. Activision gave Guitar Hero the axe [Wired], terminating the division, its employees, and a future game in the franchise Harmonix originally created. Harmonix got an extra life, at least, but it wasn’t pretty: the LA Times reports that Viacom unloaded the company – and some $100 million in liabilities – for the selling price of fifty bucks. A fight over performance payments reportedly remains unresolved.

In recent days, I’ve heard an attitude from many musicians that boils down to “good riddance.” Many serious musicians have long mistrusted these titles’ plastic instruments and linear game play. I think that’s short-sighted on two counts. For one, music games are here to stay. And for another, that should be good news for music, not bad.

Music games still have some serious business potential ahead. Business and technology are rife with examples of failures to appreciate natural cycles in demand. It’d be just as mistaken to underestimate the growth potential in the slump as to overestimate – as Viacom clearly did – that same potential in the boom. And that means opportunities for artists, and a chance to make music gaming a gateway to real musical study. “It’s just not the same as playing a real instrument,” say the naysayers. That, to me, is promising – it means that gaming could naturally lead to playing instruments.

While hard data on the transition from gaming to musical study is hard to find, anecdotal evidence sure isn’t. I’ve seen people wind up getting deeper into music production, music lessons, playing in bands, and studying percussion, guitar, and music because these games – silly as this may sound – helped make them feel comfortable with playing an instrument. Critics say these games sell a fantasy of musicianship, without the pain and agony. I say that’s the whole point: the long tradition of music isn’t a field just for specialists. It’s a world in which everyone is involved in musical practice. They play together and sing together. Extended feelings about this are perhaps best kept to a separate rant, but I see no reason, then, why these titles can’t have broad appeal.

Even if by psychological trick, something about music games has the power to telegraph to people who are afraid of being musicians that musicianship can be okay. It can be fun. It can be okay to embarrass yourself in front of your friends. (If that isn’t required in musical expression, I don’t know what is.) Music isn’t just meant to be heard – you should sing along and play along with your favorites.

Discounting such power would be a huge mistake. And fortunately, I believe there’s plenty of evidence that this new medium – among many other media for expressing and promoting music – will survive and flourish, benefiting pro and amateur musicians alike.

For people who are specialists, the Rock Band Network lives on as another avenue through which artists might build demand for their music – and both direct and indirect revenue, by extension. It could also be a model for other ideas beyond consoles and Harmonix.

Musicians should also consider the competition, both because this is more of a battle between music games and war games than plastic and real instruments, but also because the skewed numbers of the games business set an impossibly-high bar for music games.

So, talking points:

War sells better than music – at least on game consoles. “Failure” for music games is nothing to sneeze at. The Associated Press reports that Rock Band did just shy of $1.3 billion in the US alone, while the (older) Rock Band franchise hit almost $2.5 billion. The problem is that hype around music gaming may have overstated its short-term revenue potential, particularly when you start bringing bands like The Beatles into the action. And simply put, it’s tough to compete with the scale of war games. Also from that AP story (and many others), Call of Duty: Black Ops hit $1 billion worldwide in six weeks. That’s without people slavishly transcribing guitar solos or doing deals with record companies and artists and paying license fees. So, the question is, why aren’t musicians rooting for music over war? Heck, I enjoy non-musical games to unwind, so nothing against them, but I like the idea that musical experiences would survive on these platforms, too.

…but those sales did look really awful. The sudden collapse of music game sales is rightfully troubling. Guitar Hero in particular unraveled; Guitar Hero: Warriors of Rock sold only 86,000 copies versus some one and a half million of Guitar Hero III in 2007, says Wired.

So, what were the factors in that demise? Fall 2010 was the year of Kinect; its sales, in a tough economic season for gaming, was impressive. Against that backdrop and hype for war titles, you’d ideally want some serious marketing muscle in order to compete. But if Activision and Viacom were already looking to shut down or sell their properties, they may simply have cut their losses and failed to spend on marketing. That hasn’t been disclosed that I’ve found, so consider this pure speculation, but on the other hand, when I went to buy a “keytar” controller for Rock Band 3 to review for CDM, I found no in-store marketing and the store associates literally barely knew the thing was available, even sitting in their storeroom. It’s a cut-throat business, and if you don’t invest in marketing, you lose.

Music gaming is going strong as ever – if you don’t ignore the “casual” and mobile markets. Music games were never the main draw on consoles. But on mobile – platforms already associated with music consumption, and with a certain player called Apple involved in sales – things may be different. Just ask Tapulous, the startup developer of Tap Tap Revenge and other titles that was acquired by Disney last year. They were even able to unseat the mighty Angry Birds on top sales lists – well, okay, briefly. But given far lower overhead, explosive mobile growth, and more disposable content, they seem a reasonable financial bet.

None of that is necessarily good news for Guitar Hero and Rock Band. Well, unless you count…

The Madden Factor could mean 2011 won’t be like 2010. Critics – rightfully happier as users with competition between franchises – once predicted the demise of football games when Madden NFL won the rights to US pro football. Instead, Madden has become an evergreen title, selling on every platform, and remaining a big-budget, big-revenue hit. Like the music games, it simulates the real thing – well enough that even actual football players often unwind by playing it. Like Rock Band 3, it’s insanely demanding of its players; to play in pro mode, you need knowledge of playbooks and formations that rival pro coaches while using the manual dexterity of an origami master.

If its new owners can unload the debts and correct the management missteps of Viacom, could Rock Band 3 – now with no natural predators on consoles – spring back to more sales?

Sounds like a safe bet to me. It’s worth noticing…

Troubles began in 2007, with the Guitar Hero-Rock Band split. Having two music platforms didn’t work out all that well. Nor did, evidently, the elevated expectations from new corporate owners Activision and Viacom, respectively.

And Harmonix has its fingers in the two successful growth areas. Console investment involves big risk, more so with music contracts. But Harmonix has its upfront investment in its platforms taken care of – and they can make money on other platforms, too. They’ve done mobile games before; though they lack a big hit, that’s a no-brainer to hedge their bets going forward, without the same investment risk. And while on mobile they face lots of competition, pay attention to those Kinect sales: the new Harmonix Dance Central was one of the only launch titles that got positive reviews. Kinect development is far more challenging, and Harmonix has a great relationship with Microsoft.

The titles were hits; now it’s a test of the platform. War games (and Madden, for that matter) require that you buy new games every year. The result: consistent sales. Music titles, requiring new hardware accessories, wound up competing with themselves – do you buy the downloadable content, or the new game? And once you have your favorite tunes loaded, given the depth of these games, why not just keep practicing (or switch to real instruments and learn music properly) rather than buy more games?

It’s a tall order, but that means that rather than oversaturate the market, Harmonix may need to provide more reason to download more music. With pro mode, it could even morph into something that allows you to practice prior to working on a real instrument. And as it happens…

Content is coming, including on the Rock Band Network. As we’ve covered previously, Rock Band 3 finally gives musician gamers and artists publishing work the serious features they need. It’s the deep, real-transcription gameplay that critics of previous titles should theoretically appreciate. It even allows the use of real MIDI instruments for input, and includes keyboard, vocal, and guitar input that could actually serve as musical practice. As such, though, it may also take a longer time to win over gamers.

The RB3 title was out in the fall, but content that can take advantage of it is coming in the near future, including music produced by independent artists through the Rock Band Network. John Drake from Harmonix updates CDM on the progress of content for Rock Band 3.

The creators on RB are closing in on 1,000 songs that they’ve created in under a year. This feat is pretty astounding and we’re insanely lucky to have a passionate community. RBN and traditional DLC continues to sell well and with launches like “London Calling” by The Clash, we’re still bringing AAA content to our music platform. We’re committed to continuing to grow the franchise through DLC releases and we’re confident that we’re providing content that die hard band gamers want.

The gaming industry right now talks about user-generated content, but especially with the addition of Pro mode, Rock Band is one of those precious few titles that might actually deliver.

Crests are easy. Troughs make you strong. The boom-and-bust cycle is part of both the gaming and music industries. It’s easy to look only for growth, only for hits, but it’s really trial-by-failure that tends to make something mature into a real business.

So, I’ll conclude with the official statement from Harmonix, which they issued on the death of Guitar Hero, the title they created:

We were sad to hear yesterday that Activision was discontinuing development on Guitar Hero. Our thoughts are with those who are losing their jobs, and we wish them the best of luck.

The discontinuation of Guitar Hero is discouraging news for fans of the band game genre. As retail sales of Guitar Hero and Rock Band titles have slowed with time, we’ve been focused on building a robust digital platform for music gaming and have recently crested 2,500 songs available for play within Rock Band 3.

Harmonix and Rock Band continue to push beyond simple performance simulation to pioneer new approaches to music gaming. Rock Band 3 saw the introduction of our innovative new Pro Mode, in which aspiring musicians of all ages can develop actual musical skills through gameplay on guitar, bass, keyboards, and drums. We’re looking forward to the imminent release of the Fender Squier Stratocaster Guitar Controller, a fully functional guitar which doubles as a Rock Band Pro controller (launching March 1st). We are also relaunching the Rock Band Network, a way for bands of all shapes and sizes to get their music into Rock Band. RBN just passed the 1000-songs mark, and it’s relaunch will now support keyboards, pro drums and vocal harmonies. The music genre is one that calls for constant reinvention, and Harmonix is continuing to welcome and embrace that call.

In short, the beat of Rock Band marches on. We’re continuing to invest in the franchise and the brand that we have built, and will do our best to serve all loyal band game fans. For rhythm gamers out there who haven’t yet given Rock Band a chance, Rock Band 3 software is compatible with a wide range of instruments, including most Guitar Hero controllers. Looking to the future, for fans that want to switch, we’d happily welcome you over into the world of Rock Band.

It’s been a wild battle of the bands since 2007, but we respect and appreciate all of the hard work and innovation of our peers who have shared the music gaming space with us, and we look forward to rocking in the future.

More background:
Party over for ‘Guitar Hero,’ but not music games [AP]

Previously:
Rock Band 3, Behind the Scenes: When A Music Game Gets More Real

Gibson, the guitar company, has been on an utterly absurd campaign against music games, bringing lawsuits against the developers of both Guitar Hero and Rock Band and even against retailers. In the latest illustration of how screwed up patent law is, and just how over-litigious it has made technology in this country, the patent was based on a Gibson patent for a “System and method for generating and controlling a simulated musical concert experience.” Never mind that Gibson’s patent looks nothing like Guitar Hero, or that if interpreted that loosely, Gibson could theoretically sue any music software maker.

See my previous break-down of the patent and the twisted logic of the case:
Gibson Guitar to Guitar Hero Maker: We Own All Digital Musical Reality

And following development:
Gibson Guitar Loses Mind, Sues Entire Planet

Our friend Nilay Patel gets the scoop at Engadget that Gibson has lost its Guitar Hero case in California US District Court. Engadget also has a PDF of the decision:

Gibson loses Guitar Hero patent lawsuit, gets booed off stage

You can read juicy bits in the final ruling (PDF):

• Gibson’s own counsel withdrew from the case after the guitar maker refused their request for information. That’s right: Gibson wasn’t cooperating with their own lawyers. (Gibson later was represented by different counsel.)
• Gibson’s own corporate general counsel didn’t respond to requests from the court.
• Gibson started trying to force third-party Activision system providers to provide short-notice depositions, much to the dismay of the court and ACtivision, given Gibson’s own lack of cooperation.
• Gibson tried to use a YouTube video of a Guitar Hero hacker on the record, which the court found irrelevant (and, I think, laughable.)
• Gibson variously tried, unsuccessfully, legal gymnastics by which it could redefine musical instruments to enforce its ultimately irrelevant patent.

It’s also fun reading lawyers try to define what a musical instrument is in the context of this case. Ultimately, the determining factor in this case appears to be whether the musical instrument itself produces some kind of audio signal, not control signal. Yep, that’s right: it sounds like Gibson lost out because the Guitar Hero controller was defined as a controller but not an instrument. The court decision, showing unusual technical savvy, notes that the “Musical Instrument Digital Interface” (which they incorrectly call “device interface”) has been used for non-musical purposes, despite its name. In a fit of extreme hubris, Gibson at one point seems to have claimed ownership of MIDI for guitar controllers, despite prior art.

I’m certainly not qualified to interpret the judgment, but we can say this: Gibson lost. And they lost on almost every single point, from apparently abusing the court process to losing just about every detail they tried to prove. The court even says the Gibson arguments “border on the frivolous.”

The extent of their loss says to me the other cases have about a snowball’s chance, which raises the question of what Gibson was trying to accomplish in the first place. You have to wonder if they hoped intimidating legal action could help them win contract terms. But it’s nice to see the law win out — and raises hopes that, in the long run, legal remedies could eventually fix frivolous abuses of the patent system.

Oh, yeah – and we can all be relieved that Gibson neither owns the idea of making things look like guitars, nor musical simulation. Phew.

Are you making music without real acoustic instruments? You know, in, like, virtual reality? Then you may have stepped into a strange, alternate dimension. Let’s call it, for the sake of argument, The Gibson Zone. They control the horizontal. They control the vertical. They invented what you’re doing … right now.

Or, at least, that seems to be the message sent by a recent patent dispute between Gibson Guitar Corporation and Guitar Hero developer Activision. (Harmonix, the original Guitar Hero developer, has moved on to Rock Band.)

I know what you’re thinking: maybe Gibson claims to have invented the guitar, or the Guitar Hero controller looks a little too much like an Epiphone or something. Ah, but that might actually make some sort of logical sense, and this is the topsy-turvy world of intellectual property. In fact, both Harmonix and Activision already have licenses with Gibson for their guitars.

Instead, Gibson is arguing they own the rights to anything that can “simulate participation in a concert,” which they patented in 1999. (Look out, air guitar lovers.) Now, I don’t claim to be an expert in patent law, but being the layperson that I am, I would assume the original Gibson patent would have some passing similarity to Guitar Hero.

System and method for generating and controlling a simulated musical concert experience [Google Patents]

Well, let’s review. The Gibson patent is described as follows:

“A musician can simulate participation in a concert by playing a musical instrument…”

Okay, with you so far.

“…and wearing a head-mounted 3D display that includes stereo speakers.”

Nope. Lost. They do know that Guitar Hero is not available for Virtual Boy, right?

“the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system;”

Okay: musical instrument, check. “Instrument audio signal?” No, not in Guitar Hero.

“a video source providing a source video signal at a source video output, the source video signal representing a video portion of the pre-recorded musical performance

a video display responsive to the source video signal whereby the user can view the video portion of the pre-recorded musical performance on the video display.”

To the extent that Guitar Hero involves a TV, yes. Pre-recorded musical performance? What? I’m lost again. In fact, what exactly is Gibson describing here? Playing your guitar while watching an old Pearl Jam concert DVD? With goggles on your eyes?

“an audio source providing a source audio signal at a source audio output, the source audio signal representing an audio portion of the pre-recorded musical performance, the audio portion including an instrument sound track containing pre-recorded musical sounds that would be generated by the musical instrument in the pre-recorded musical performance”

At this point, I think Gibson is patenting sound itself. Or, at least, karaoke, which as I recall had already been invented in 1999.

a system interface device having a first audio input electrically connected to the instrument audio output, a second audio input electrically connected to the source audio output, and a first interface audio output;

More damning evidence, except for the fact that Guitar Hero doesn’t have an audio interface.

And, still more:

f. the system interface device including a source audio control circuit responsive to the instrument audio signal, whereby a characteristic of the source audio signal is controlled in response to operation of the musical instrument by the user to provide a controlled source audio signal at the first interface audio output; and
g. an audio playback transducer responsive to the controlled source audio signal such that the user can listen to the audio portion of the pre-recorded musical performance on the transducer, in synchronization with the video portion.

Back to my first theory. This, followed by lots of talk about audio signals and audio portions and “video disc machines” still seems to involve you playing your Pearl Jam DVD karaoke-style with a guitar. In other words, both wholly un-patentable, and wholly unrelated to Guitar Hero, an interactive game with computer-generated graphics and a controller with buttons not audio.

It’d be a bit like if the guy who invented the paperclip claimed patent rights for deep sea fishing. But, as I said, this is patent law — so that may be possible.

Now some visual evidence:

Keeping in mind that what you’re looking at involves audio signal, not the control input of a game controller, from that guitar, I’ve provided this marked-up version, removing the stuff not in Guitar Hero:

But Gibson does have a point. To the extent that Guitar Hero involves:

• sound
• image
• people pretending to be musicians
• something shaped like a guitar
• an on/off switch

…Guitar Hero is a dead-ringer, patent-violating copy of what they described in 1999. Then again, so is a group of stoners playing air guitar Pink Floyd to The Wizard of Oz.

‘Guitar Hero’ Subject of Patent Dispute [Associated Press, via Wired.com]