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=IP in Audio=

==Introduction==

Acquiring music and sound effects for use in a video game can be one of the easiest or most frustrating aspects of the development process. This portion of the white paper will give a brief summary on what a developer must consider when selecting or creating music for a new game. It should be noted that this chapter only covers general aspects of music licensing. It is meant for informational purposes only and does not constitute legal advice. Whenever you are attempting to acquire intellectual property rights, you should always consult an attorney with knowledge in this area.

==Rights in Music==

Acquiring the rights to use music in games is tricky because any recorded song actually contains two separate copyrights; one in the sound recording and the other in the underlying musical composition. In order to properly obtain the right to use a performance of music in a game, you must obtain the rights to both the sound recording and the musical composition.

The sound recording embodies the legal right to the actual recording made from a musician's performance. Sound recordings are referred to as "masters" in the music industry because a sound recording is recorded on master tapes at a studio. Sound recordings on the master tapes are typically owned by record labels as opposed to the musicians who made them. Record labels typically require the musicians to assign the copyrights in and to the sound recordings to the labels on a work-for-hire basis when musicians sign recording contracts.

The musical composition embodies the legal right to the actual written song. The musical composition is completely separate from the sound recording, and therefore, it has a separate copyright. This is the case even when the musical composition and the sound recording are created by the same artist. A good way to distinguish the musical composition from the sound recording is by contrasting the song recorded on a CD to the song as embodied in sheet music. When you purchase sheet music, you are not paying for the sound recording, but rather for the musical composition of a song. When you purchase a CD, you are buying the sound recording of a musician's performance and at the same time you are also buying the underlying musical compositions embodied in the musician's performance on the CD. The rights to musical compositions are often controlled by a completely different set of people than those that own the rights to the sound recordings.

Typically, musical compositions for pre-existing music are fully owned, co-owned, or administered by music publishers. As a result of several years of consolidation, the major music publishers are for the most part owned by the same multinational conglomerates as the major record labels. For example, the music publisher Warner/Chappell is owned by Time Warner, Inc. and the music publisher Sony/ATV is owned by Sony Corporation. Because major record labels have sister music publishing companies, oftentimes new bands will assign their rights to the musical compositions of their songs to their record label's publishing affiliate when they sign a recording agreement.

==Getting Everything At Once: The Work Made-for-Hire==

The easiest way to obtain music rights for your game is to hire someone to compose and record original music for you specifically for the game. By doing so, you can assure that you will own both the sound recording and the musical composition rights from inception, and will not have to worry about tracking down rights from various record labels and music publishers for pre-existing music.

If you do hire someone to write and record music, you need to make sure that you have everyone involved in creating and recording that music sign a written "work-for-hire agreement." A work made-for-hire is a copyrighted work created by an employee within the scope of his or her employment, or a work which is commissioned for, among eight other categories, audiovisual works. 17 U.S.C. 101(2003) [2]. Typically you would require the creators to provide assurance that the work they are providing is original and not copied from another work. Because copyright rights in a work can only be transferred through a signed written instrument, work-for-hire agreements are crucial to proving that you have all of the rights to the music created for your game. In fact, these documents are so important that publishers will require you to guarantee that you have executed work-for-hire agreements for all of the people that worked on your game when you enter into a publishing deal. In some cases they will require review of these agreements. 

By hiring someone to compose and record original music, you can obtain all of the rights you require at once, which as you will see from the discussion below, can be much easier and much cheaper than acquiring pre-recorded music.

==Master Use Licenses==

If you want to use pre-recorded music in your game, you will have to go through a two-step process of acquiring the required rights. First, you must obtain the right to use the sound recording from the record label which owns the song you want to use. This is done through an agreement called a "master use license." The agreement is named so because you are acquiring a license to use the "masters" of the sound recordings from the record label. You will need to contact the marketing or "special markets" division of the record label which owns the previously-recorded masters you wish to license. Typically, marketing divisions are reasonably responsive to licensing issues, especially given the drastic downturn in CD sales over the past few years. Many major labels will even grant discounted or free licenses to publishers or developers for the use of music by new artists. Although you may have a relatively easy time obtaining the required Master Use License, this is only half the battle.

In many cases the licensing of pre-existing music is handled by the game publisher, rather than the developer. If the game license has music associated with it, say a theme song for a TV show, the publisher may or may not have acquired the rights to use or imitate that theme song when they acquired the license. In turn, the creators of the TV show may or may not have acquired the music for the show with any ancillary rights to use it in other mediums. It is important to specifically clarify what music rights have been licensed before commissioning or composing music for the game, as it will determine whether a close copy is permitted, or whether the music has to be entirely different. 

==Synchronisation Licenses==

Recall that the Master Use License only gives you the right to use the sound recording of a song for your game. You will also have to obtain the right to the underlying musical compositions. To obtain these rights, you will have to execute a "synchronisation license" or "sync (h) license" with the owners of the musical compositions. These licenses are called "synchronisation" licenses because you are obtaining the right to "synchronise" a song in timed-relation with a visual work.

Unlike the masters, which are typically owned by record companies, musical compositions may be owned by each songwriter who contributed to the musical composition and each of their respective publishers, or to any party to whom the songwriter may have assigned these rights. Finding out who owns a particular musical composition can therefore be very difficult. A good place to start is searching the websites of the U.S. performance rights societies. These societies keep track of and manage the payments to music publishers for the public performance of musical compositions (i.e. on radio, television, sports events, nightclubs, etc.). These websites can be found at www.bmi.com, www.ascap.com, and www.sesac.com. While these sites will not have information on every song, they will have listings for most popular music. If you cannot find the song you are searching for through these websites, it is possible that the song is administered by a separate international performing rights society.

Once you have found the correct music publisher or publishers, you must contact their respective licensing departments to negotiate a license fee for the use of the musical composition. Music publishers tend to be less responsive regarding licensing opportunities than the marketing divisions of record labels. At the same time, music publishers can also be tough negotiators. If multiple publishers share the rights to the same song, one publisher may hold out for more money after the others have agreed to grant you the license. You may therefore want to obtain outside help within the music industry to handle these negotiations (see below), or rely on the game publisher to handle acquisition of music rights for your game. Record labels may be able to assist you with the negotiation with the publisher if the publisher is the sister company of the record label and the label has a strong interest in putting its music in your game.
 
==Moral Rights==

In addition to the copyrights discussed above, many countries recognise the concept of an author's moral rights [3]. Moral rights protect an author's interest and reputation in his or her works. These rights exist outside of copyright, and therefore, if you are licensing music from a copyright owner that did not get a waiver of the author's moral rights, you may still have to get permission from that author. Therefore, whether you are licensing music or commissioning someone to compose and record music for you, you want to be sure that the author has waived his or her moral rights pertaining to such particular song or recording. Moral rights are not part of US copyright law.

==A Quick Word on Sampling==

As anyone who has listened to hip-hop knows, "sampling" is the digital (or in some cases analog) copying of a small portion of a sound recording. Although the amount sampled from a complete sound recording may be very small (even just a few bars), that sample requires licenses for both the sound recording and the musical composition. There is a myth that using a very small portion of a copyrighted work is not an infringement. To an extent, this is true, however, the use must be so trivial or de minimis, that it has no effect on the copyright owner's interests. You can assume that if the sample is at all recognisable or familiar sounding to the listener, it is not de minimis. It is best to assume that a sample is not de minimis, and get a license for the sound recording and the musical composition regardless of how small it is. The price of obtaining a "sample license" (as it is called in the music business) will be much less than the cost of defending an infringement suit.

In some cases it is a subjective call as to whether music that sounds similar or reminiscent of a pre-existing theme song is infringing on that pre-existing copyright. If you are not sure, you should raise this as a possible issue so that your counsel or the game publisher's legal department can provide legal advice. 

==Music Supervisors==

By now you are probably aware of the difficulties in obtaining rights to pre-recorded music. Not only is it oftentimes difficult to track down the rights holders for musical works, but due to the nature of the music industry, many people will be hesitant to work with you if you are an "outsider." Fortunately, there are people who have devoted their careers to selecting and obtaining rights to pre-recorded music for other works of entertainment. They are called music supervisors. Music supervisors mainly offer their services for films and television, but as games become more complex and music driven (Grand Theft Auto: Vice City is a superb example) music supervisors are delving into interactive entertainment. Although a music supervisor will add some cost to your development budget, they have long-standing connections with record labels and music publishers, allowing them to negotiate rates that someone without their relationships would not be able to obtain. Furthermore, the music supervisors manage all of the assorted paperwork up to negotiating the definitive synchronisation and master use licenses, at which point attorneys draft the appropriate agreements. While many major film and television studios have their own music supervision departments, there are many independent music supervisors who are available for games. They are listed in a publication called Music Business Registry, which may be ordered through www.musicregistry.com.

Similarly, many game publishers are turning to pre-existing popular music as an alternative for creating the game soundtrack. In this case they may handle all of the licensing details for you, and just provide the songs that they have licensed. In order to use this music for the game however, you would typically need to modify the music to create loops or extend it to fit game sequences. In this case you will need to confirm the extent to which you can modify the licensed work. In some cases you will not be able to modify it at all, in other cases you will be able to modify it as needed to shorten or extend it, create instrumental versions of it, or use only portions of it. 

==Sound Effects and Voiceovers==

Similar issues need to be considered when using sound effects or voice overs. Certain sound effects, like the ubiquitous Wilhelm Scream, have their copyrights expired, but other sound effects need to be licensed from libraries or created specifically for the game. 

Voiceovers have the additional issue of conformance to Screen Actors Guild regulations, which require that reusing a voice line from a TV show or another game may require the actor to be paid again for that new use, even if it is just copied and they never set foot in a recording studio for your game.   

==Conclusion==

For as much depth and emotional intensity that audio can add to your game, it can add just as much headache to your development process. Therefore, the easiest way to handle your musical needs is to hire someone to compose and record the music for you. If using pre-recorded music is a necessity, you should seek the services of a qualified music supervisor or have the game publisher handle this directly. 

[1] Whether a music publisher owns the musical composition entirely, owns a percentage of the musical composition or merely manages the licensing of the musical composition depends upon the type of agreement between the music publisher and the songwriter.

[2] This chapter contemplates "works made-for-hire" under United States copyright law. Different countries have different requirements for ownership of an employee's copyrights or copyrights for collective or audiovisual works. You should therefore consult  an intellectual property attorney in your jurisdiction to determine your country's copyright law requirements for hiring someone to compose and record music for you. 

[3]Recognition of moral rights varies from country to country. While some countries recognise all moral rights, other countries only recognise some of them. The United States only recognises the "attribution" and "integrity" moral rights in a very limited aspect as they are applied to visual works of art. See generally, Melville B. Nimmer & David Nimmer, Nimmer on Copyright 8D.01, 8D.02 (2002).