Legal registration of music for video games — REVERA column

Svetlana Gordey and Daria Savko

If you hear "soundtrack" or "OST" — be sure that we are talking about the same thing. OST stands for Original soundtrack, which is music used in a video game, movie, or other work.

Officially, the soundtrack is music that was created before the creation of the video game, and was later used in it. However, we are now seeing a trend that this term refers to any music used in video games.

In this article, we will tell you how to properly use soundtracks in games.

The use of soundtracks requires the copyright of musical works to be respected. If the music was not created inside the company (by employees), then it is necessary to obtain permission from the copyright holders to use their compositions in game content.

There are two ways to get such permission:

1. License

The game developer may enter into an agreement with the copyright holder to license (transfer for a certain period of time) his musical work for game content. In this case, the copyright holder does not lose his status as a copyright holder, but only allows the use of musical works to a certain limited extent.

One of the options for such licensing is the use of stock music. If you use music from this source, it is important to understand what type of license the stock provides and what restrictions the stock itself sets, because the amount of use depends on this.

Popular stock platforms include SoundCloud, Pixabay and Icons8. Each of them has its own requirements for downloading and using music in commercial projects.

For example, users who upload audio tracks to SoundCloud distribute the material under a Creative Commons license, the terms of which give the right to use it for commercial purposes. Icons8, in turn, requires you to link to the platform to indicate authorship, and to use music from Epidemic Sound, you will need a subscription, which differs depending on the purpose of use: personal, commercial or corporate.

2. Assignment

This is the second option for obtaining permission, when the developer can purchase the rights to use a particular composition in full forever, that is, in fact, to buy the music.

If the developer is independently engaged in creating soundtracks for his project, then here we will talk about either attracting employees within the company or using the services of a music label.

In both cases, the legitimate use of musical works requires either the assignment of the exclusive right to the musical work, or a license. In the case of music labels, licensing agreements for the use of music are most often concluded, and in this case the label remains the copyright holder. When developing within a company, a piece of music may be recognized, for example, as an official work, and in this case the company becomes the copyright holder.

What should be included in the agreement on the creation and use of the soundtrack?

If a music label is involved in creating music for a video game, first of all, attention should be paid to whether the transfer of the result of the work will be carried out under a license or under a concession model.

As we can see from practice, most often we are talking about granting a license, so when concluding an agreement on the creation and use of a soundtrack, it is important to clarify a number of points.

1) Financial conditions. This may be a fixed amount for each minute of content created and, therefore, an additional fee for each minute in excess of the negotiated norm.

Sometimes companies can also claim a percentage of video game sales. In this case, it is important to determine what this percentage is calculated from (for example, from monthly, annual or semi-annual sales, from a certain number of copies sold), the reporting process, etc.

2) The scope of the rights granted. As a rule, musical material is transmitted under license. In order to legally place a music track in a video game, you will need rights to use, reproduce and perform; sell and distribute a video game that includes music, as well as transfer such rights to third parties (publishers); include music in the marketing materials of the game.

It is also necessary to specify the territory of use (certain countries, regions or the whole world) and the license period, as well as the type of license (exclusive or non-exclusive).

3) Sequels. If you are planning to develop a sequel to a video game, and you plan to use the transmitted soundtracks, you should specify this in the contract. In this case, you can prescribe one of two options:

• when developing a sequel, which is supposed to include an existing soundtrack, the parties may conclude an additional contract for such a transfer. In this case, for example, the expected financial conditions can be specified in the "main" contract.
• The contract should immediately specify the conditions for including music in sequels that will be created in the future.

How do I specify the music license period correctly?

Most of the time, of course, music is licensed, since authors rarely want to "give" it to the creators of video games. As we said above, when making a license agreement, the parties must specify the period for which the rights to use the intellectual property object are granted. However, when specifying the deadline, there may be prerequisites for problems that will arise in the future.

After the license expires, the parties have two options: to extend the license agreement and, consequently, the rights to the musical design of the video game, or to stop using the music. Due to the fact that after 5-10 years (the average duration of the license), the financial performance of video games may decrease, as the market is replenished with new and unique products every year, publishers often "sin" by deciding not to renew the contract, which ultimately leads to the game becoming unavailable.

In this case, the question arises: why not replace the already "forbidden" music with another, for example, less expensive one? However, the situation is the same: firstly, the publisher may no longer want to invest in an old, perhaps not so profitable project; secondly, making changes to video games that were developed many years ago may be technically difficult. Accordingly, from the publisher's point of view, the cost of "updating" a video game does not correspond to the real benefit.

A similar situation occurred in 2019, when the video game Alpha Protocol (developer — Obsidian Entertainment, publisher — SEGA), released in 2010, was withdrawn from sale in 2019. At first, the publisher announced that the reason for the withdrawal from sales was the expired rights to the video game. Later, however, it turned out that the rights were still "held" by the publisher, and SEGA did not want to change the musical accompaniment, the rights to which had expired, to another soundtrack.

However, in 2024, the video game was returned: the digital GOG platform helped such a return, especially in terms of the "restoration" of the musical component. The platform has been negotiating with the copyright holders of the expired soundtrack for a year and a half, and has been successful; now Alpha Protocol is available to users on this platform.

It is worth noting that this problem affected many games, including the Grand Thief Auto series: tracks were also removed from GTA: Vice City and GTA: San Andreas due to the expiration of their license. Moreover, GTA: Vice City was particularly affected, having "disappeared" from Steam and other stores in 2012. After deleting some music tracks, it was returned.

Of course, the mentioned games are not the only ones affected by this problem. But first of all, it is worth paying attention to the fact that she has only one source — an insufficient period for a musical work and not enough initiative from the parties to renew the license.

How can we prevent a situation with the withdrawal of a video game just because of one song?

It is important, first of all, to understand how long the active PR of the game and investing in it are envisaged. Some projects are short—term due to their genre and trends, some due to the size of investments. When developing such a project, it is not necessary to set a music license period for a period of ten years or more; a standard period of five years may be sufficient.

We must not forget that any project can suddenly "shoot" and be relevant many years later. Therefore, we still recommend signing music licensing agreements for a sufficiently long period (for example, 20 years) to avoid possible problems with copyright ownership.

It is also important to understand the intentions of the parties, primarily the developer and publisher. In rare cases, the music copyright holder will object to the renewal of the license fee. Accordingly, if the parties are determined to further include music in the project, then the extension of the contract, as a rule, goes smoothly.

If the copyright holder protests against the extension of the contract, there is an option to replace the "prohibited" composition with another one. Most often, problems with such a replacement arise only for fairly old projects, but to a greater extent the fact of such a replacement will depend on the willingness of the developer and publisher to invest in these changes.

How to properly "adapt" existing music to the game?

Often, "samples" are used to create video game soundtracks — small fragments of musical compositions on the basis of which the original soundtrack is created. In other words, samples are the base from which new tracks are created.

However, like any other object, samples also have copyright holders. And, since samples are intended to be the basis for creating music, you can purchase a license or buy the soundtrack from the copyright holder. In this case, it is important to pay attention to the terms of the contract, especially in terms of the scope of the rights granted.

In addition, you need to pay attention to the terms of remuneration: some contracts include provisions that the licensee undertakes to pay the licensor a fee every time audio appears in your project, as well as for each time your track is played, for example, on a radio station. Some samples are free of license fees (look for the royalty-free indication in the terms), and you have no obligations to the licensor for any payments.

The "basis" for special tracks can be not only samples, but also full-fledged songs. For example, Soviet retro-arranged songs were used in Atomic Heart, which led to problems, namely, the blocking of the game trailer due to "copyright infringement" on the song "Music connected us".

Despite the fact that the studio acquired the rights to use the song, the problem was to conclude an agreement with a third-party organization (the National Music Agency), which owned part of the rights to the works of Andrei Lityagin, the author of the song. Nevertheless, the agency did not own the rights to the song, which caused problems, namely the illegal acquisition of the rights to the song from a third party.

Thus, despite the fact that the rights for all the other songs were acquired in the correct order, it was with "Music connected us" that the studio had problems.

This case shows the need to acquire exclusive rights to use music only from copyright holders.

Conclusion

We advise you to pay special attention to the license provisions, in particular, the territory, the term and scope of rights, the remuneration provisions and specifically the person with whom you plan to conclude a contract. Careful study of the terms in the music licensing agreement will allow you to be fully aware of the rights and obligations associated with the use of music in your video game, and avoid possible troubles or legal problems in the future.