One of the biggest challenges facing machinima makers is the issue of using copyrighted material as part of their production. I’m not talking about the engine or in-game assets themselves… that’s a whole ‘nother discussion; and in most cases, the manufacturers are aware (or even complicit) in the use of their game to make machinima, so it’s unlikely that game manufacturers will scream “copyright!” unless there has been a flagrant abuse (i.e. piracy or redistribution of their game or game assets)… or perhaps if the machinima piece is so controversial that the game maker feels obligated to step in and make that stand. Most game developers and even distributors seem friendly at least to the idea of machinima, and I think it’s unlikely that any will step in any time soon to regulate content created with their game for fear of anti-free-speech connotations.

But when you’re talking about copyrighted material from an entirely outside source - music, for example - it’s a completely different story. The music business’ current profit model is structured heavily around the notion of controlling the distribution and use of their music - even on the public airwaves, and certainly on the internet. And a litigious response to unauthorized use of copyrighted music is not unprecedented. So naturally, there has been a recent rise in the awareness of machinima makers about this crucial issue. What usage is “safe” and what is not? That is the question.

Despite what you may have heard, the answer is actually very clear cut and lacks much ambiguity… at least the kind of ambiguity that works in your favor. There are a lot of myths that have surfaced over the years, but the truth of the law (I’ll focus on U.S. Copyright, other countries and international laws may vary slightly) is pretty straightforward.

** If I’m using copyrighted music for a non-commercial project, it’s okay, right? As long as I’m not making any money, I’m safe.

Wrong. ANY use of copyrighted material without prior consent is a violation of the law. The law does not stipulate that non-commercial use is any more permissible than commercial use.

** What about “fair use”? Doesn’t that mention non-commercial uses?

Yes, it does. But the actual wording is “nonprofit educational purposes.” AND, commercial vs. non-commercial is only one of FOUR criteria used to determine if usage qualifies as “fair usage” and not infringement. The other three criteria are:

1. The nature of the copyrighted work.
2. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
3. The effect of the use upon the potential market value of the copyrighted work.

It all sounds a little loose, doesn’t it? Unfortunately, that mean$ lawyer$ in a courtroom debate the meaning of these item$ before a judge who ultimately decide$. What that means, essentially, is relying on “fair use” is a gamble. A big one.

Now, before you look at the four criteria and think you’ve found a safe loophole for your usage… bear in mind the following text which also appears in the same document: “There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

Ouch.

** But I’m not making any money! And I find it hard to believe that my film would hurt the record company’s ability to make money! So no big deal, right?

Well, that argument *might* have had a chance prior to 1997, but in that year the No Electronic Theft Act (The NET Act) was passed, which removed the necessity of a “profit motive” in order for copyright infringement to be prosecuted. That means that “value” of a work no longer has to be measured in money, and opens wide the door for prosecution - even of minors - for illegal music downloads, and even moreso for any form of distribution.

** So what’s my risk, really? I mean, what could they do, anyway?

Well, best case scenario, if you are prosecuted, is a hefty fine and court costs. Worst case involves confiscation of your property used to perform the violation, even bigger fines, and possible jail time.

** Okay, okay… so how do I go about getting permission to use copyrighted material?

Believe it or not, this actually IS possible to do. However, before I describe how, it’s only fair to warn you that the process can be very time consuming, and doesn’t have a successful outcome very often. But here’s how it works. (deep breath…)

Let’s take a copyrighted song as an example, and say (just for instance) that I wanted to use Dean Martin’s rendition of the song “Sway” in my non-commericial machinima piece.

The first thing to understand is that a song actually has two separate, yet equally important, copyrightable components. The first is the song itself: the melody and lyrics, otherwise known as “mechanical licensing.” The second component is the “sound recording” itself, a particular performance by a particular artist.

A publisher will grant Mechanical Rights to a record company, which enables them to record a performance of the song, and the record company in turn copyrights that “sound recording.”

Mechanical Rights, it should be noted, ONLY apply when talking about audio only recordings. In other words, if the song is to be used in any kind of audio-visual medium, then mechanical rights would not apply. In this case, the publisher can grant Synchronization Rights for audio-visual usage.

So, in order to make use of Dean Martin’s recording of “Sway,” I need synchronization rights from the publisher and sound recording rights from the record company.

By performing a search for the artist and song title at Gracenote (a.k.a. the CDDB), it is apparent that Dean Martin’s record company at the time of recording “Sway” was Capitol Records. (Here is confirmation of his listing as their artist, and here’s one of several records on which the song was released, if you’re interested.) Capitol Records is owned by The EMI Group, and has been since its acquisition in 1955. You can read a bit on Capitol’s history in Wikipedia.

So, as of now, we know that we’ll need to contact Capitol for sound recording rights, and we know EMI is their parent company, which might come in handy in tracking down a contact at Capitol. But as for the song itself, we’re kind of at a dead end.

Now let’s find out the holder of mechanical rights for the song. Music publishers who professionally license their songs for recordings are almost always members of one of the big three “performance rights organizations,” namely ASCAP, BMI, or SESAC. These firms track broadcasting (radio airplay, broadcasting in public places like restaurants, etc.) of sound recordings, and they see that the royalty monies are distributed to publishers. The Harry Fox Agency, on the other hand, is an independent agency which performs similar services related to mechanical licenses.

ASCAP, BMI, and SESAC all have databases of their publishers, artists, songs, etc. But unless you have a strong lead, you’ll end up searching all three and it can take quite some time, especially with a one word song title that has been used by multiple songs over the decades. And searching by “Dean Martin” isn’t particularly helpful, because he wasn’t necessarily a member of the same organization as the publisher of this song. So the best bet to try first is Harry Fox, they’ve got a nifty search engine called SongFile which is open to the public. Searching SongFile for the song “Sway” turns up 59 results. Yikes. Some you can likely eliminate right away by the writer’s name; I don’t think Dean recorded the “Sway” written by Mick Jagger and Keith Richards. But most of them aren’t that obvious.

It turns out, in this particular case, we get lucky, because the first search result we get, when we dig deeper it turns out Dean is listed as one of the many artists who recorded this song. Interestingly enough, Jennifer Connelly is not listed for her performance of the song in Dark City… I just KNEW that wasn’t really her singing!

Anyway, it turns out that the song was written by Norman Gimbel and Pablo Ruiz, and the publisher is listed as Southern Music Pub Co Inc OBO Peer International Corporation. A little creative Googling turns up a website for Peer Music, who just happen to mention Dean Martin amongst the artists they are proud to have worked with. Unlike Capitol Records, Peer is pretty open about their contact info. With a record company, you’ll have to wade a lot deeper and likely spend as much time on the phone as on the internet; it can sometimes be like penetrating a fortress.

In my case, hoping to grab permission from both these entities to use this song in The Fixer, I settled for professionally worded e-mail inquiries to both Peer and Capitol. Cue the sound of crickets chirping, I’ve yet to even get a reply from either. We opted to go the Creative Commons route instead, a comparitively painless process.

I don’t want to discourage you, but I honestly don’t know of ANYONE personally who has successfully secured the rights needed to use a copyrighted sound recording for free. But theoretically, it should be possible with persistence, and this is how it would be done. Research, and then relentless seeking of a contact who will answer you and get the ball rolling.

** Dude, WTF? I’m like, so depressed now. What can I do?

The answer is a simple one, but probably not the one you most want to hear: DON’T use copyrighted material. There is such a wide variety of material which is licensed in a friendly way, and a great many musicians and composers who will work for bacon. Sometimes, literally, all you need to do is ask.