Nimrod offers advice on how to avoid licensing pitfalls to get the music rights you desire
‘Music? Elephants?’ I hear you saying. ‘What the hell is he on about?’
Music, whether commercially released and licensed, or commissioned specifically for a product, is an integral component in games development.
From a haunting score to the pulsing and adrenaline fuelled licensed soundtrack on a dancing game, the music acquisition process is a key part of the development process.
If you’ve worked on any shipped video game, chances are you have dealt with a composer, record label, music publisher, agent/manager or lawyer.
The process can seem very daunting to those that never have before. Licensing commercial music in particular can become a real headache, as multiple copyright owners can be involved, and depending on which format of distribution for your game, different rights are required.
Although basic rights are often understood, there are other rights often forgotten or ignored that have become the ‘elephants’ in the room, as detailed here.
This covers the composition and the lyric in the song and can be owned by several writers or copyright owners (music publishers).
RECORDING OR MASTER RIGHTS
This refers to the rights for a particular recording of a composition. These rights can again be owned by an individual but often by a record label. Multiple record labels may be involved if a recording is signed to different labels in different territories.
Working on a singing game or game such as Lyroke, where these are graphically reproduced on screen, these rights will need to be cleared with the publisher or writer direct if they have no publishing deal.
Where the promo video for a song is used
in-game, these rights also need to be cleared and often are owned by the record label who have often financed the promo’s production.
When using music in a video game, or indeed other visual media, other rights that need to be cleared come into play.
These rights are often misunderstood and I have heard claims that ‘we don’t clear mechanicals for video games’.
The term, whilst a throwback to the mechanical machines that pressed records, actually refers to two distinct rights and should not be disregarded. It includes the right to make a copy of the music and to distribute that copy.
If you’re making a game for physical release or for digital distribution, you are making copies of the music and distributing them on each disc or download. The music publisher can clear these rights in most cases, but there are exceptions when dealing outside of the UK.
Care needs to be taken here depending on the country of origin of the writers on the song. In certain countries such as France, if a writer is a member of the local rights society, in this case SACEM, they administer the rights on behalf of the writer.
In the case of French artists such as David Guetta, Phoenix or Daft Punk, their mechanical rights need to be cleared for use direct with SACEM, and not the music publisher.
The rights to be able to perform the music will come into play in a number of ways with a video game. Whether it’s promotion at retail or at consumer and trade shows, the music will be performed when the game is played – the venues, whether a shop or conference centre should have the appropriate licence in place and here in the UK it would be a PRS licence.
Where these rights are often overlooked is in the digital distribution space. A digital release, whether a download or an online game where gameplay is streamed, is a public performance of the work taking place.
This is always the case whether the music is being streamed or downloaded, as all territories outside North America recognise these acts as a public performance. In North America a public performance in a download is not legally recognised.
Now you appreciate the complexities of inter-territorial licensing and the resulting confusion. In this case where a license needs to be acquired for the broadcast of the music online, who is responsible for having the public performance license in place? An area of much debate amongst music users, but if you speak to the PROs (performance rights organisations) it is the responsibility of the broadcaster who can report on the number of downloads and streams so that remuneration can be calculated.
YouTube have a public performance licence in place as its core business relies on streaming. Does your website have a license in place? The fact that different music publishers have set up different licensing agreements with different societies to offer pan territorial licenses doesn’t make the process any easier.
With the goal of a global rights database there are moves being made in the right direction to make this process less complex and confused, but currently we’re a long way off from where we need to be.
THE FALSE START
Depending on the recording you are using and the musicians on that recording, you may need to speak to another bunch of firms other than the record label and publisher.
You may find that the record label is dealing with has language in their licences that state that there may be union payments due on the recordings.
Let’s take Anglo American repertoire as it is often used in games. A recording from the UK may have musicians playing on it who may be members of the Musicians Union. If session musicians are present – not core members of the band – this recording will be due union payments. The same is the case with a US recording and its equivalent American Federation of Musicians, although there are others involved when dealing with American masters.
The American Federation of Television and Radio Artists are another such organisations and in terms of music and recordings, they represent vocalists. In this case vocalist on a recording whether core member or not will be due residual payments.
Such organisations have established rate cards or formulas to work out such ‘residual’ fees, which often include a contribution towards a pension pot. Although an issue which has come up at contract stage for some time, many of those actually dealing day to day with copyright owners and acquiring music for media uses are simply unaware of the additional costs.
Music is a universally understood and loved part of the development process, not only in our industry but many other media. As such, it is the one part of development that everyone feels they have a legitimate say in.
On an A&R level this can be great as music tastes are varied and the more great ears on a project, the better (as long as there are not so many the decisions are stifled).
Things tend to start turning where an understanding of rights needed for a particular use are absent – everyone may be an A&R, but very few can be the music lawyer; an equally important side of the music supervision process.
What are your options? Above any advice I can give is simply be educated. Get someone in that knows what they are dealing with and you can relay what you are trying to achieve.
After all, you wouldn’t veer away from hiring a coder for your game as you’re a game producer and a keen coder in your spare time. You will maximise your music budgets purely by having someone on board that knows how to navigate the various stakeholders in each of the rights that you need.
Other options are music libraries – owners are in the position to confirm no union payments are due, although public performance is unavoidable. Although public performance rights still come into play if the product is streamed or downloaded, the team at Nimrod Productions educate clients to ensure they are aware of the licences they need to have in place and acquire them where relevant.
Now that the ‘elephants’ are fully in view, it’s worth building them into your music acquisition plans. As they say, knowledge is power.