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 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 won’t 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 need to be put down in a material form – it will not protect your ideas.  These works may include:

  • cinematographic films;
  • sound recordings;
  • artistic works; and
  • musical works.

 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 also 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, the copyright owner can bring an action for infringement against the infringer. The penalties that may follow are severe and can include criminal findings.  

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 came from.

Music You Created

You can use music as part of your video game without taking any precautions if you have created it yourself. The process of creating a piece of music involves:

  • composing;
  • writing;
  • performing; and
  • recording.

Therefore, if anyone else had a part 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 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 the use of copyright work through 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 with 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 Commons licences, you will need to look at whether the song allows you to use it for commercial purposes. Otherwise, there are licences that require you to sign up to the same licence if you choose to use a particular song. You will need to carefully look over 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 the transfer of the copyright. Alternatively, you could licence your right to use the work.

Seek Clearance

If you wish to use a song that is already made, you will need to request clearance from the owners of the song. This is otherwise known as gaining a “music licence”. In this situation, you will need to think about whether you just want to use the music instrumental, 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. Music is made up of many components that attract the protection of copyright law. If you intend on using music as part of your video game, ensure you obtain the necessary permissions before doing so. If you have any further questions about copyright or intellectual property (IP) protections, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page. 

Esther Mistarz
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