In Short
- Ensure you secure the necessary licences before using copyrighted music in your video game to avoid legal issues.
- Understand that music involves various copyright components, including composition, lyrics, and performance, which may be owned by different parties.
- Consider alternatives like commissioning original music, licensing existing tracks, or using royalty-free music to manage costs and legal obligations.
Tips for Businesses
To integrate music into your video game effectively, consult with intellectual property experts to navigate licensing complexities, maintain accurate records of all agreements, and secure licences that cover future updates and re-releases to ensure compliance and minimise legal risks.
From Guitar Hero to SingStar, many video games use popular songs as backing tracks or as part of the gaming experience. Whether you can use copyrighted music in a video game is a question of copyright law. This article outlines what music you can legally use in your video game.
Copyright and Video Games
In Australia, copyright is an automatic protection of your creative work. This means that no registration of copyright is necessary. However, copyright will not protect a video game as a whole. Instead, it will protect each creative work that makes up the video game.
Copyright exists in “works” and “subject matters other than works”. These works may include:
- cinematographic films;
- sound recordings;
- artistic works; and
- musical works.
Video games comprise a series of creative works subject to exclusive rights – music is just one of those.
Copyright and Music in a Video Game
There is generally more than one copyright owner in any musical work. That is because music, like video games, is composed of a series of components that attract copyright protection.
Continue reading this article below the formExclusive Use
Copyright authors or owners have an exclusive right to use, adapt and share their work. Without permission to use work subject to copyright, the copyright owner can bring an action against the infringer. The penalties that may follow are severe and can include criminal findings.
The “Fair Dealing” Exception
There are some limited “fair dealing” exceptions in Australian copyright law that allow use of copyright material without the owner’s permission for specific purposes, such as:
- research and study;
- review and criticism;
- parody and satire;
- enabling a person with a disability to access the material;
- reporting the news; and
- giving professional legal advice or during judicial proceedings.
Your usage of the copyrighted material must be primarily for one of these purposes, not for commercial gain. In addition, it must also be “fair” use in the circumstances. For example, if you stream an artist’s music video on your YouTube channel for the purpose of providing a review or critique, you should only use enough to illustrate your point rather than reproducing the entire music video on your channel.
When Can I Use Music In My Video Game?
Whether or not you can use different pieces of music in your video game largely depends on where the music comes from.
Music You Created
You can use music as part of your video game without taking precautions if you create it yourself. The process of creating a piece of music involves:
- composing;
- writing;
- performing; and
- recording.
Therefore, if anyone else participated in any of these processes while creating the piece of music, you will need their permission to use it in your video game.
Creative Common Music
If you choose to use an existing song, you might consider checking if it is available on the Creative Commons website. Many musicians voluntarily decide to release their songs under one of the Creative Commons licences.
Creative Commons is a non-profit organisation that facilitates using copyright works through a public copyright licence. They have six available licences that are free. Each licence has different terms, so you must check which licence your chosen song is under. Some of the licences allow you to use a song without questions.
However, not all the licences are as straightforward. You must ensure that what you intend to do with the music complies with the relevant Creative Commons licence terms. For the stricter Creative Commons licences, you must consider whether the song allows you to use it for commercial purposes. Otherwise, some licences require you to sign up for the same licence if you choose to use a particular song. Again, you will need to look over the terms of the licence carefully.
Music Commission
You might consider commissioning a professional to create music for your video game. In this situation, you can negotiate an employment agreement with them that will have a relevant clause for the copyright transfer. By owning the copyright, you can use the music however you want in your game. Alternatively, you could licence the right to use their work, but you must ensure you understand and comply with the scope of the licence (limitations, terms, permitted uses)
Seek Clearance
If you wish to use an existing song, you must request clearance from the song’s publisher. This is otherwise known as gaining a “music licence”. In this situation, you must consider whether you want to use the instrumental music, not the lyrics.
You can request a licence by contacting the publisher of the song directly. However, if you do not have the publisher’s contact details, you can find them through the APRA AMCOS website. You can use the search tool to filter by song title and the name of the composer or artist to retrieve the publisher’s details.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Key Takeaways
If you plan to use music in a video game, you must ensure that you are not infringing on anyone’s exclusive rights and obtain any necessary permissions. Music has many components that attract the protection of copyright law.
If you need help using music as part of your video game, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Generally speaking, you must seek clearance from the publishers of each song you intend to use in a video game. Otherwise, if you use the work of another without permission, this will likely amount to copyright infringement.
For context, the fair dealing exception defends against copyright infringement when individuals use work to report news, offer criticism or review, conduct research and study, provide professional legal advice, or create parody and satire. Since video games likely do not fall into one of these categories, the law would not likely consider using a copyrighted work in a video game as fair dealing.
We appreciate your feedback – your submission has been successfully received.
