This is one of those instances where there are so many moving pieces it's difficult to determine the most logical point to begin. The idea of collective music licensing is probably as good a place as any. Copyright law dictates that the creator of a work holds certain rights to that work, which we've discussed at length in LGJ. Based on those rights, if you want to integrate a copyrighted work into another work, you would need a license. As you could imagine, however, if you're creating a film or running a radio station, tracking down each and every artist for every song you want to use would be a labor intensive process that would likely never end. Enter companies like ASCAP and BMI as the solution to that very problem.
In short, musicians go to these groups and license their songs. Those catalogs are then licensed downstream to all sorts of users, from businesses who want to have music playing in the background to radio stations to other media like TV and film and even the Internet, and the royalties earned by the catalog licensing are paid back to the artists. Of course, these companies do more, such as advocacy for artists and policing the marketplace to make sure businesses like those listed have licenses when those kinds of audio are being played, but the collective licensing is what matters in this context. The movie and television industries have similarly available 'special' licensing; you can readily get a license to show a movie to a large crowd from 3rd party license groups, and most subscription based TV services (i.e. cable and satellite) have program packages specifically for use in public places, like bars and restaurants.
Video games have no such equivalent. Of course, for decades the arcade units were assumed to be for public use, and home consoles were for private use. Arcade units, after all, were like movie theater film: while some may be wealthy enough to have these at home, for the most part they were entirely used by commercial groups. Of course, the current state of affairs has created two different issues. First, it's wholly unclear whether home consoles can be used in public (other than in stores selling those consoles, which is covered by a specific exemption) without additional licensing. Conventional wisdom would suggest that one would at least need permission to do so, but as I've been told by many groups, from schools to libraries, who have tried to seek permission to use those games in public, the results are spotty at best, if a response even comes from the publisher/developer. This is similar to what we've seen in terms of permissions within the machinima world.
The other problem is the one illustrated by the article I linked at the beginning of this column. There seems to be a substantial disconnect between the game industry's view of a Guitar Hero arcade unit and the music licensing industry's view of that same unit. To the game industry, it's just a game. To a group like ASCAP, it's a form of interactive jukebox. Each view certainly has merit, but it is worth noting that unless the song is played correctly, the sounds coming out of the unit certainly don't resemble what comes out of a jukebox playing the same song.
And the licensing doesn't make this any clearer. While I haven't personally been involved in any rhythm game negotiations for the Guitar Hero titles, it is my understanding that these are done on an artist by artist basis, not with a collective license. That being the case, the license with the artist should designate whether this includes use in public, and if it does, then the claims of ASCAP are moot. The same goes if the games were licensed per a collective license. However, if the license is limited to private or personal use, then ASCAP could have a claim as to the music's use in this context, but the artist would likely have a claim against the developer/publisher as well. Given the recent suits over Kurt Kobain and No Doubt in music games, I think there would have already been a suit over the public use of the game if it were not addressed in the contract.
So, of course, the biggest issue is venues which do not have an ASCAP or BMI license that may cover the tracks in question. After all, those who already have a license for that music in the venue would already be covered if in fact the ASCAP view of the machine was held. Ultimately, this is probably an issue that needs to be worked out between the game developer/publisher and the artists before arcade units are put into public use. Of course, that doesn't mean ASCAP won't intervene, but certainly it's an issue that has been worked out in other media and needs to be finally resolved with games. These are the kind of issues all media face as they continue to grow up and evolve, and it's certainly to be expected that we will face far more of these kinds of issues with the continued growth of the internet and other forms of media. Ultimately, it is all worked out in one way or another, but before it's resolved, it's certainly interesting to analyze.
And finally, I wanted to wish all the readers a Happy Holidays from LGJ!
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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