Famous Last Words Feb10

DISCLAIMER: This column is intended for general educationaland entertainment purposes and is not legal advice. Every situation is unique. Anyone entering into a contract should have a lawyer who can provide counsel.

Jim Charne,

Attorney at Law

Composers' Use Their Game Music for Demos  (February 2010)

Dear Jim:

I have a question that's been bugging me for a while.

When a composer produces music and sells the full rights to a publisher, does the composer retain some sort of automatic right to post up a few tracks for demo purposes, for the

purpose of landing new work?

And is there some sort of legal limit to how long those demo tracks can be? (especially if the publisher is selling a soundtrack CD).

-Game Composer

Dear Composer:

The first place to look when investigating rights is your contract with the game publisher (or developer if you were to be working as a free-lancer for a developer). 

It is always a good idea when negotiating your deal to reserve the right to use segments of your work as demos for business development purposes - both on a demo reel and on your web site.

Some publishers will permit this, if it is requested by the composer or his or her lawyer, during contract negotiations.  If the publisher does agree, expect some limitations. 

For example, the consent may limit the number and length of the segments that may be used for demo purposes - especially if they are to reside on your web site.

The consent may permit streaming only - no downloads.

The consent may also prohibit your use of the work until after launch of the game.  I believe this is reasonable because the publisher wants to control all aspects of the launch and pre-launch publicity.

If you cannot or do not negotiate these rights, however, all may not be lost.

The first thing to consider is to approach the publisher or developer and request permission to use the segments.  If you are on good terms, there is a reasonable chance that permission will be granted.  You have shown yourself to be a reliable and talented supplier.  They may want to use you and your talents in the future.  This becomes a relationship issue.

There is no reason for the publisher or developer to want to antagonize you over what is really a reasonable request.

But there is no obligation to grant your request.  And if the request is denied, on the surface, no right exists for you to use the material.

Generally, music dev agreements provide that music deliverables are "work for hire" under United States copyright law.

Those words mean that, for copyright purposes, the publisher or developer is treated as the author of the work.  As composer, you have given up all rights and claims for copyright purposes.  Any unauthorized use of your work by you is an infringement of the copyright owner's rights.  Even though you are the composer, you are not the copyright proprietor.

Under these circumstances, a composer can be an infringer of his or her own work.

But in this circumstance, all is not necessarily lost.

United States copyright law provides for "fair use."  I regard "fair use" as the intersection of a copyright owner's right to control use of his or her property, and the free speech guaranteed by the First Amendment.

Under certain circumstances, certain uses of someone else's copyrighted work is permitted.

But "fair use" is both narrow and widely misunderstood.  The issue is not simply whether a use is "non-commercial" or limited to "8 bars" or "5 seconds" any other objective measurable.

The copyright law sets four tests that must be applied to determine whether a use is a fair use.

These are:

        1. the purpose and character of the use;

        2. the nature of the copied work;

        3. the amount and substantiality of the copied work; and

        4. the effect of the taking upon the copied work's value.

It is always best to ask an experienced copyright lawyer to help with this frequently complicated analysis.

A good discussion of these the four tests can be found in wikipedia:  http://en.wikipedia.org/wiki/Fair_use

One important consideration when relying on "fair use" is that it is a defense to a claim of infringement.  The only time you would assert "fair use" is after you've been threatened with a claim, or worse, after a claim is filed.

So in the context of this discussion, I would hope that composers would use it only as a very last resort!  It is not an absolute.  A claim that a use is a "fair use" may fail! 

A far better strategy is to think ahead when negotiating a deal in order to reserve rights to use music for demo purposes. 

Failing that, requesting permission is a good strategy in maintaining the relationship with the publisher or developer.

But when all else fails, a fair use analysis may, in the end, provide the means for reproducing music for demo purposes.

Jims Bio

Jim Charne practices law in Santa Monica, CA (www.charnelaw.com) where he represents developers, designers, composers and other clients in the games industry.  Jim has been a frequent speaker at GDC, is active in IGDA from whom he received an “MVP” Award at GDC 2006, in 2010 will chair the Practicing Law Institute video game law segment the week after GDC at its annual Entertainment Law Symposium in New York, and is a member of the Advisory Board of G.A.N.G.  Jim served as President of the Academy of Interactive Arts and Sciences from 1998 to 2001.

Is there language in your contract that has you scratching your head?  Found something confusing or worse?  Send it to “Famous Last Words” for developer-oriented analysis.

Famous Last Words is intended for general educational and entertainment purposes and is not legal advice.  Every situation and circumstance is unique.  Anyone entering into a software-related contract should have an experienced lawyer who can provide counsel throughout the process.

©2010 Jim Charne.  All rights reserved.