When people refer to music that has entered the public domain, they are usually referring to music where the copyright protection has expired. Due to differences in the laws regarding duration of copyright protection, when a piece of music enters the public domain may differ from country to country.
At the outset, it is important to point out that there are two copyright interests in a song – the musical composition (the lyrics and sheet music) and the sound recording (the specific performance of those lyrics and sheet music). So while a musical composition may be in the public domain, the sound recording may not be.
Can I legally include public domain music in my video game?
For this blog post, we’re going to focus in the U.S. as Odin Law and Media is primarily a U.S.-based law firm.
So can a game developer or content creator legally include public domain music in a video game or video in the U.S.? Well, the short answer is: maybe.
The longer answer is that typically in the U.S., a work published in 1978 (the date the current Copyright Act took effect) or after has a copyright term of life of the author plus 70 years. However, if the work was created before 1923, the work may be in the public domain in the U.S., as those works remain unprotected today.
It gets a little more complicated if the work was published between 1923 and 1978. Under the 1909 Copyright Act, a copyright lasted for a first term of 28 years from the date it was published. That term was then eligible for renewal for an additional 28 years, for a total of a 56 year term. If it was not renewed, the copyright expired at the end of the first 28-year term, and the work is no longer protected by copyright.
Through a series of copyright term extensions, the maximum term of copyright protection for works increased from 56 years to 95 years (a first term of 28 years plus a renewal term of 67 years). What all this means is that all works that gained statutory copyright protection starting from 1923 to the present day remained subject to copyright protection through 2018 at the earliest.
In order to protect copyrighted works from infringement across countries, the Berne Convention, an international set of laws, was adopted. Over 180 countries and city-states are members of the Berne Convention today. Pursuant to the Rule of the Shorter Term in the Berne Convention, U.S. works that have entered the public domain in the U.S. will generally be ineligible for protection in foreign countries.
However, each country’s particular law has to be consulted for an accurate determination. For example, Canada is an exception to the rule and does not follow the Rule of the Shorter Term. Canada’s copyright term is based on the life of the author, the remainder of the calendar year in which the author dies, plus 50 years following the end of that calendar year.
It is important to point out that there are two copyright interests in a song – the musical composition (the lyrics and sheet music) and the sound recording (the specific performance of those lyrics and sheet music). So while a musical composition may be in the public domain, the sound recording may not be.
OK but hear me out – what if my game is downloaded in other countries?
Depending on the platform, developers may be able to restrict where their game is sold. For Steam, due to the Steam Distribution Agreement, it is assumed that all partners have worldwide rights for their soundtracks. Steam is, by default, a near-global platform and a primary feature of the Steam store and community assumes all content is available to all customers.
Realistically speaking, doing a country by country analysis on the copyright status of a song can take a lot of time and money.
Businesses can try to reach out to the copyright holders, but that can also take quite a bit of time. Sometimes it can take months just to receive an initial response back. There are also rights clearing organizations that can do this sort of thing and they may have relationships with the copyright holders to be able to clear songs much more quickly.
It’s sort of a business assessment – weighing the likelihood that someone would file a suit for copyright infringement for a particular work in other countries may be low. If a business wants to be 100% assured though, the easiest thing to do may be to limit the sale of the game to only the U.S. and other limited countries where the budget allows for copyright analysis.View all posts by this author