UK: Music In Games

Whenever there is a partnership like this there are a wide range of issues to consider. On the Games side there is the matter of licensing, trade marks and copyright, royalty terms, territorys etc. For the Music or artist you will have to consider performance rights, rights to the recording, rights to the songs, image and personality rights and more.

Such is the nature of both industries that these issues are given a further gloss by the fact that the legal rights will be owned by many different parties.

With most "pop" groups, typically their management company would have an agreement with them that they take a share of the band’s earnings, they will then negotiate deals. The main deal would be the recording contract, under which the record company would own the copyright in the band’s sound recordings, this is the master.

The band may however retain their image rights and merchandising rights and perhaps live concert rights.

The record company or the manager will also deal with a publisher. In some cases the record company will be the publisher but where it is not the publisher will usually take all the rights in the performance of the band’s works, the lyrics and the music. That means that every time there is a publication of the work (playing to the public as in a club) the publisher will be entitled to a royalty from the person that plays it.

Forming a licensing arrangement with a band in this position is therefore littered with difficulty since a title that uses the band may need permission from the Record Company, Band and Publisher.

Accordingly any music used on a coin op machine in a public amusement arcade will result in a royalty being due to the music publisher, the record company and the band before the games publisher or the developer see any of the pie. Games used at home however may be able to avoid the royalty to the publisher if they prohibit "public performance and broadcast"

It is therefore not uncommon for developers and publishers to sign deals with artists only to find that the artist doesn’t have the right to use its hits in the game. These will be owned by the Record Company and unless they can be re-recorded a royalty will be payable. Clearly this royalty will be substantial.

The same applies to the internet, clearance being required by each copyright owner for the public performance and or reproduction of the song over the internet including as background music to a web site.

To make life easier and because of their vast catalogue of materials, many song writers and publishing companies have decided to transfer the task of clearing their songs for use to an organisation called the Mechanical Copyright Protection Society (MCPS). They are able to license music for use in, for example web casts or library music, on particular terms.

Similarly composers and publishers have granted the Performing Rights Society (PRS) authority to grant licences to perform their members’ work in public.

Though two separate licenses are required the organisations work very closely together and negotiation with these societies can reduce the administration required for the use of music considerably.

The above issues are, however, only a problem if you are dealing with prior existing material. Dealing with or commissioning new material is, legally speaking, a substantially easier exercise – but by the same token less attractive to a games company as there is less established goodwill on which to rely. Music created by a third party should be subject to a composers agreement which will ensure that the music received from the composer is amongst other things original, owned by the commissioner and available for exploitation without restriction. Therefore there will be no need to apply to the MCPS/PRS or PPL for licenses.

Another alternative will be to obtain the music from a specialist "music library" and arrange with that company to undertake the clearances.

The consequences of carrying on regardless may be significant. The Copyright Designs & Patents Act 1988 gives owners of copyright works the exclusive rights to do and authorise certain acts. Therefore, if music is made available in any form without the appropriate clearances having been received, it will be copyright infringement and the copyright owners may obtain an injunction and or damages as a result of loss that they have suffered as a result of the infringing use.