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Music in Computer Games
(featured in Develop Magazine)
Brian Miller
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Ever since the advent of video games in the 1970's, computer games have become increasingly sophisticated. As technology has developed, modern graphics help to create seamless movie-like scenes and, in the quest for the ultimate multimedia experience, the music used in games has evolved from a few carefully placed beeps, such as Atari's ‘Space Invaders', to the same track playing on repeat and culminating in entire specially commissioned scores. Composer Jesper Kyd even went so far as to enlist 110 musicians from the Budapest Symphony Orchestra and Choir to perform his score for the game, ‘Hitman 2: Silent Assassin'. In short, music is now a powerful, emotional and essential element of a gamer's interactive experience.
What's more, the sound-track album is no longer confined to the realms of the big screen. Now computer games, as well as blockbuster films, are often followed up with soundtrack albums. For example, in the recent game release, ‘Grand Theft Auto: Vice City' players can enter cars and listen to one of a number of radio stations, each playing a different genre of 1980's music. Sony Music Entertainment has released seven soundtrack albums to the game, each featuring the music from different in-game radio stations. Music in computer games not only adds value to the gamer's experience, but is also an important source of revenue beyond that which is derived from the game itself.
With all the extra time and money now invested in music for games, it is unsurprising that legal issues need to be addressed now, which in the past may not have been considered. Most importantly, it is essential that the publisher or developer of a game secures licences of all the rights in the musical content.
What rights need to be cleared?
If the publisher or developer is using a pre-existing commercial musical recording, it will need to ensure that permission is secured from both the owner of the copyright in the sound recording and the musical composition (i.e. the underlying music and any associated lyrics). If the musical composition and/or the sound recording are being commissioned specifically for the game, the publisher or developer still needs to ensure that they have secured all necessary rights from the creator of the music, before the game is distributed into the market.
What happens if permission to use a piece of music is not obtained?
The inclusion of a musical composition or sound recording in a computer game without permission from the relevant rights owners exposes the publisher or developer of the game to the risk of facing legal action for infringement of copyright. If the rights owners are successful, they may be awarded damages or even a share of the game's profits and may also secure an order preventing further distribution of the game and delivery up of all infringing copies. A criminal action may even be brought against the publisher or developer of the game. This may lead to an unlimited fine and/or up to two years in prison. It is therefore, essential that the necessary permissions are sought and obtained prior to release.
How is permission to use a piece of music obtained?
Music created for the game
If the composer is an employee of the publisher or developer and writes the musical composition as part of his or her employment, the copyright owner of the music will either be the publisher or developer (depending on whether the employee composed the music in the employ of the publisher or the developer), as the music would have been created in the course of his or her employment. No further permission is required, at least under UK law.
If the publisher or developer of a game commissions a composer to compose the music, then any rights issues should be dealt with in the commissioning agreement. The publisher or developer should seek either to obtain ownership of the rights or alternatively a licence to use the rights. If copyright ownership is not addressed at this point, copyright in the musical composition will remain with the composer. Whilst it could be argued that the publisher or developer may have an implied licence to use the musical composition for the purposes for which it was commissioned, that licence may not extend to cover certain other uses such as the inclusion of the musical composition on a soundtrack album if that album was not contemplated when the music was actually commissioned. It is also prudent to secure a waiver of any so-called "moral rights" (such as the right to be identified as the author and the right to object to any derogatory treatment of the work), which the composer may have, to ensure that the publisher or developer is free to make any necessary changes to the composition.
The publisher or developer should also ensure that the agreement they have with those actually recording the music (whether or not this is the composer) includes a provision ensuring that the publisher or developer owns the copyright in the sound recording. This is necessary even where that person is an employee of the publisher or developer. Furthermore, the agreement should ensure that the performer of the musical work gives his or her consent to include his or her performance on a sound recording. If the musical work is used without obtaining the performer's consent, the publisher or developer will be infringing the rights of the performer. For the sake of certainty and clarity, it is always better to cover rights issues thoroughly in a written agreement.
Using other people's music
The position is more complex where commercially recorded music is used. The publisher or developer must first find out who owns which rights and then obtain all the necessary licences. For example, songwriters will often assign the copyright in their music and lyrics to a music publisher and the rights in existing sound recordings are likely to be vested in a record company.
So, if the publisher or developer wishes to use a recording of a song or piece of music in a game, they will have to contact the record company and the music publisher involved. They will need to obtain what are known as "synchronisation licences" to allow them to use the music in synchronisation with the action in the game. This licence may encompass the sale of a specified amount of copies of the game, known as buy-out or alternatively may provide for an initial license fee plus royalty payments per game sold.
When clearing rights in the musical compositions, the position is made simpler by the fact that many publishers have appointed the Mechanical-Copyright Protection Society ("MCPS") to negotiate the licensing of musical compositions for computer games on their behalf. The MCPS is a useful first-stop when considering obtaining the necessary licenses. However, such licenses are not automatic and may also require the music publisher's permission and therefore, negotiation of favourable licence terms is very important. Unfortunately, in the case of the sound recordings, it will be necessary to approach each individual record company in turn.
The future
As technology develops at an ever increasingly rapid pace, computer games are at the forefront of this, constantly pushing the technological boundaries forward. Music is destined to become as important to computer games as it currently is in the movie industry. This inevitably means that publishers and developers need to be aware and address the rights issues before developing a game.
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