A lot of what I’ve written about so far is stuff that is made readily available to anyone interested in looking for it. Actually, almost all of the topics I’ve discussed can be found elsewhere if you scrounge enough for it and have the stomach for the legal BS. I’ve been general, but that’s not going to help you much, so let’s start on something more specific.
Getting sounds and music for your game may be something you want to do. If so, you’ll need to acquire rights to use that music in connection with your work.
Going the Independent Route:
I’m going to sell indie musicians here because they’ve earned it and you can probably afford it. If you’re an independent developer, there are plenty of independent musicians out there who would love to let you use their music. Some will even license it to you for free, for a reduced flat rate, or for a fair royalty rate if you can guarantee the kind of exposure they want. Many would enjoy the opportunity to sign on as an independent contractor on a work-for-hire basis with the possibility of a royalty as compensation for services rendered. One way to find artists is to check out your local university music program(s). There are a lot of talented artists and composers out there with the skill to bring life and sound into your work. If you’re planning on adding a full scale live orchestral score to your work, going independent may be a bit more problematic. However, advances in technology have given musicians considerably more freedom when it comes to composing music scores digitally. In other words—don’t forget about independents in OTHER industries, too. Hiring a musician to compose and record your score as a work-for-hire could save you a lot of headache in the long run. More to the point, when you’re dealing with other independents it’s much easier for both parties to come to a mutually beneficial compromise– something that is rare when you’re dealing with larger and more influential companies.
Basics of Music Licensing:
Music licensing is kind of weird. The Copyright Act distinguishes sound recordings from compositions, and in the music industry, those rights usually aren’t held by the same people. On top of that, you may have moral/author rights issues that exist in foreign countries (i.e., France) that are non-waivable and belong solely to the author (and for the most part expire on the author’s death—they’re not given the same treatment or duration as a Copyright because they are non-transferrable). So that’s a minimum of three distinct rights you have to think about when licensing music.
Master Use License
A useful resource to find out who owns what:
Harry Fox Agency
The Master Use license belongs to the owner of the sound recording. This typically means the record label that recorded and distributed the album. If an artist recorded the music independently, this is less of an issue (one more reason to go independent). However, if you’re going for a particular song or a score that you’ve heard previously and absolutely MUST have in your game, you need to go to the owner of the Master to get the non-exclusive right to use that song in your game. Because there is no mechanical licensing for video games, you can’t get one through the HFA.
Keep in mind that most recording contracts are exclusive, so an artist, composer, or orchestra that is bound by an agreement may only record your work with the label’s permission. This usually means a greater expense to you. Fees for a Master Use license are typically comparable to those of a sync license (discussed below). The more popular the song or score, the more expensive the license. Master Use licenses and sync licenses are typically done on a flat fee basis, installment basis, or in the case of a score, on a per finished minute of music basis (similar to film).
First, two references you’ll need to determine who owns the right to the composition:
If the music you’re looking for is foreign, google that country’s Performance Rights organization. Otherwise, go directly to the song’s WRITER (not necessarily the person who performed the work).
Don’t worry, you’re not asking for the performance rights (which is why I didn’t go into compulsory licenses in the Master Use section). ASCAP and BMI list the publisher or owner of the publishing rights to a particular work. You need to be careful here, because composition rights are usually split three ways. 50% goes to the publisher, who pays the artist royalties. 25% goes to the author/songwriter’s publishing company, and 25% goes to the author/songwriter. I do not know why they do this and no one has ever explained why in a manner that makes any kind of sense. I just know they do it. Fortunately the Performance Rights organizations typically list both the Publisher and the artist’s publishing company, and typically the artist/artist publishing company gives the Publisher administration rights (i.e. the right to license). As with the Master Use license, the license fee depends on the publisher, the type of music, and/or the type of performance required. Many publisher deals require that all music composed by a musician during the term of the contract is subject to the publishing agreement, meaning that anything composed by the musician is still subject to the publisher’s ownership and administration interests.
My advanced entertainment law seminar professor routinely had industry professionals come in and speak. Two brothers, one of whom worked at a prominent music publisher, gave a discussion on licensing music for video games. The music publisher estimated that for a score a music from one of his more prominent clients, it would cost $2500 per minute of music with an average of 75 minutes of music. The contracts closely resemble film contracts, but publishers are moving away from the old "buyout" model previously used for score licensing in video games and are now moving towards models similar to score licensing for films (i.e on an installment basis). At least for that publisher.
This is trickier, but key, and important to note if you do decide to hire someone to do your music—droit morale, or author’s rights/moral rights have some portions that aren’t waivable. Therefore you have to be very clear in either your license from the author (when you get the sync license) or your work for hire agreement that "moral rights are hereby waived to the extent that they are waivable," or similar language. Otherwise the license will be held void by a foreign court.
Acquiring a license through a major label and publisher can be a very costly front end venture. As many of these companies want a flat fee, there is little room for negotiations on the back end (where you can reduce your front end costs in exchange for a royalty rate). This puts the developer in a difficult situation, and it’s the main reason I’d suggest keeping your ears open for talented and skilled indies.