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 sets out whether you can include music in your video game.  

Copyright and Video Games

In Australia, copyright is an automatic protection of your creative work, and it is regulated by the Copyright Act 1968 (Cth).  No registration of copyright is necessary.  But copyright won’t protect a video game as a whole; it will protect each creative creation that makes up the video game.  

Copyright subsists in “works” and “subject matters other than works”.  These works need to be put down in a material form (in writing) – i.e. it will not protect your ideas.  These works include cinematographic film, sound recordings, artistic work, musical works and so forth.  Video games are then made up by a series of creative works that are subject to exclusive rights – music is just one of those.  

Copyright and Music in a Video Game

In any given musical work, there is generally more than one copyright owner.  That is because music, like video games, is also made up of a series of components that attract copyright protection. For example, in making a song, there will be a composer that wrote the music. There will be a lyricist who wrote the lyrics and an artist who performed the music.  All of which will have automatic copyright protections.  To make it work practically, these individuals will need to each give each other “permission” to use and share their work.  

Exclusive Use

Copyright authors or owners are given an exclusive right to use, adapt and share their work.  Without permission to use work that is subject to copyright, section 115 of the Copyright Act 1968 (Cth) allows a copyright owner to bring an action for infringement against the infringer.  The penalties the may follow are severe and may include criminal findings.  

When or How Can I Use Music In My Video Game

When You Created It

If you are to compose, write, perform and record the music yourself you can go ahead and use the music as part of your video game. 

Creative Common Music

If you choose to use a song that is already made you might consider checking if it is available on the Creative Commons website. Many musicians voluntarily decide to release their song under one of the Creative Commons licences.

Creative Commons is a non-profit organisation that facilitates, legally, the use of copyright work via a public copyright licence. They have six available licences that are free. Each Creative Common licence has different terms, so you will need to check which licence your chosen song is under. Some of the licences allow you to use a song and no questions asked.

However, not all the licences are as straight forward.  You will need to make sure that what you intend to do with the music is compliant under the terms of the relevant Creative Commons licence.  For the stricter of the Creative Common licences, you will need to look out for whether the song allows you to use it for commercial purposes.  Otherwise are licences that require you to sign up to the same licence if you choose to use a particular song.  You will need to read the terms of the licence.

Music Commission

You might consider commissioning a professional to create music for your video game.  In this situation, you can negotiate with them an employment agreement that will have a relevant clause for assignment (transfer of ownership) of the copyright or licence right to use the work.

Seek Clearance

If you wish to use a song that is already made, you will need to request clearance, otherwise known as a “music licence”, from the owner or owners of the song. In this situation, you will need to think about whether you just want to use the music composition and sound but not the lyrics.

Key Takeaways

If you plan to put music in a video game, you will need to make sure you are not infringing anyone exclusive rights and obtain any necessary permissions.   To reiterate, music is made up of many components (lyrics, music composition, recording, remixes and so forth) that attract the protection of copyright law.  If you intend on using music as part of your video game, sure you obtain the necessary permissions before doing so.

Contact LegalVision’s copyright lawyers to assist you with any questions you may have about obtaining the necessary permissions or in drafting any music commission agreements.  Questions? Call us on 1300 544 755.

Esther Mistarz

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