The legal side of music in games

Music is at the forefront of games development as never before – and for all the right reasons, thanks to standout titles like Grand Theft Auto, SingStar, and, of course, Guitar Hero.

According to Activision, sales of the latter have exceeded six million units worldwide and generated sales income of US$238 million. Guitar Hero is expected – within only two years from initial release – to be the first franchise to break through the US$1 billion barrier, ahead of such familiar games franchises as FIFA, Madden, Grand Theft Auto and The Sims.

As music becomes more important to both musicians and game developers, it’s critical that developers understand fully the legal issues of sourcing and acquiring all music rights – of knowing what rights arise in commissioned or recorded music, who owns them, and how these can be cleared to enable the developer to exploit the game in all its forms, platforms and variations.

The consequences of not doing so can be disastrous, if not criminal.

//crosshead// Copyright 101

Copyright law draws a clear distinction between the copyright in the original musical composition – what is generally termed the ‘underlying work’ – and its subsequent recording. The underlying work may contain both music and lyrics, and both elements are separately protected by copyright.

The first owner of each of these copyrights is their respective author(s), but you should note that the lyrics and the music might have been written by different people, or by more than one person. In other words, a number of people may have composed the song in its recorded form, which, if used in a game, will mean each of these individuals’ consents (or their respective publisher’s consents) will be required.

A fresh copyright arises when the composition is subsequently recorded, this time in the sound recording itself. Again, typically, the first owner of this copyright will not be the composer(s) of the underlying work but the party who makes the arrangements for the recording to take place, usually a third-party record company.

You must obtain the consents of all these parties, and not just for the inclusion of the music in the game. The consents given should be sufficiently wide to enable you to exploit the game as extensively as possible, and therefore maximize all its possible revenues.

//crosshead// When copyright goes wrong

Not obtaining proper consent from copyright owners can be an expensive mistake to make. Unauthorised use in a game of a composition or a recording of a composition is an infringement of copyright law. An aggrieved copyright owner might initiate an action against you, which, if successful, can lead to a claim for substantial damages or a share of the game’s profits.

Worse, the rights’ holder may obtain an injunction preventing exploitation of the game altogether, and the destruction or delivery up of all existing copies. The unauthorised use of music in a title could even give rise to criminal proceedings against a game’s developer, with the threat of a heavy fine and, in extreme cases, a custodial sentence.

It is clearly sensible then for a games developer or publisher to obtain (or at least begin the process of obtaining) all necessary rights before substantial work is done on the game and, in particular, before a piece of music becomes essential to any element of gameplay.

Be clear what rights are required, and whether the music will need to be adapted for use. Future proof the rights where possible, and think about ancillary rights, too.

These costs may seem prohibitive given all the competing demands on the budget of a top-flight modern game, but if your title is a hit and you want to reuse the soundtrack in other versions, it could be more cost effective to obtain the rights now, than to try and bargain for them later with an obvious money-spinner on your hands!