Possible legal issues for using a video game brand in a song?
December 29, 2011 11:52 AM   Subscribe

Possible legal issues for using a video game brand in a song?

I'm thinking of writing a song which uses Halo as the basis for the song. It would include inside jokes relating to the game, and the chorus would actually use the word "Halo" in reference to the game.

I would not be sampling any audio from the game, all of the content would be created by me, but I wonder if references to the video game would put me in any legal hot water.

Nothing in the song would reference the game in a negative way, if anything it would be considered positive.

I know of other artists who have used brands as the basis for songs (such as Jonathan Coulton's song "Ikea"), but I don't know if they did anything ahead of time to make sure everything was OK.

Is this something I need to worry about? Are there any problems I should anticipate?
posted by markblasco to Media & Arts (8 answers total) 1 user marked this as a favorite
Transformative use.
posted by Ideefixe at 11:59 AM on December 29, 2011

IANAL, but it seems like this would be pretty straightforward a-ok parody. Weird Al would be significantly less rich and famous if this were an issue (A song like "Yoda" is as much a parody of Star Wars as it is of "Lola," if not moreso.)
posted by Sys Rq at 12:08 PM on December 29, 2011

I don't know the exact law, but the example comes to mind is AKA Driver, by They Might Be Giants. In the song, they sing the line 'Hey, NyQuil driver, it's NyQuil driving time' many, many times, but on all on the liner notes the song is listed as "AKA Driver", and there are (or at least there weren't in the cassette tape I got in 1991) no lyrics printed in the notes. So, it seems singing the name is fine and dandy, but printing it might be another thing.
posted by whitneyarner at 12:09 PM on December 29, 2011

I'm not sure what Microsoft's official take on this exact issue would be, but track down the guidelines they put out for people doing machinima animation with their products. Chances are there will be some clues there about what will set the Microsoft legal department off.

IANAL, but I think the big bugaboo is registered trademarks (titles, character names, that sort of thing) and some "These IP things that I'm referring to belong to Microsoft, and I'm making no claim to them" legalese at the bottom goes a long way to avoiding corporate legal department GRAR! Exactly what needs to be in that bit of legalese and how much protection that buys you, I'm not sure.
posted by Kid Charlemagne at 12:31 PM on December 29, 2011

Is this something I need to worry about? Are there any problems I should anticipate?

The main thing that is important to realize in these sorts of situations is that anyone can sue you for anything, even if what you are doing is legal, and that if that happens it will cost you money. It's more likely that you will not get taken to court over something like this, but having a plausible Fair Use defense doesn't completely protect you, see the recent Kind of Bloop case for instance. So overall there is a relatively large chance that no one will care, a smaller chance that the rights holder will ask you to stop, and an unlikely but not completely impossible chance that you will get sued.
posted by burnmp3s at 12:40 PM on December 29, 2011

If the song is published then you might need to make mention that Halo is a registered trademark of such-and-such in the liner notes. Paul Simon had the same problem with Kodachrome® - be careful about using trademarks for the title of the song.
posted by AndrewStephens at 1:00 PM on December 29, 2011

> Weird Al

He gets permission and the songwriting royalties are shared between him (the lyricist) and the original song's author.

Parody and transformative use are for copyright. The issue here is trademark. Both IP regimes are in conflict with the first amendment and both have fair use doctrines that attempt to balance that conflict. Copyright's fair use is now codified in law as four tests. Trademark's fair use was codified in three tests in New Kids on the Block v. News America Publishing
(1) the product or service in question must be one not readily identifiable without use of the trademark;
(2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
(3) the defendant must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
but later cases have muddied the waters [via]

A review of Halo needs to mention what it's talking about and is obviously about the game and it should be pretty clear that Bungie/MSFT isn't endorsing the review/reviewer/publication.

A popular blogger refers to Google as "a popular search engine" not because he's afraid of being accused of "riding their coattails" and confusing readers into thinking Google endorses him, but because he doesn't want to endorse them. If you use a descriptive phrase "space military shooter for game console" or make up a name (nimbus) so people know you're talking about Halo but you don't mention it by name, you might be safer. It can also be more interesting.

> anyone can sue you for anything

Amen. If they get cranky, they likely won't even sue you but send a cease and desist. They also might do a DMCA takedown against wherever the song is hosted. It's an inappropriate use as that system is only for copyright, not trademark, but it's done anyway. Sometimes cease-and-desists are sent to hosts (rather than authors) and just mention "intellectual property infringement" without saying which kind and are interpreted to be DMCA takedowns.
posted by morganw at 12:38 PM on January 1, 2012

> Weird Al

He gets permission and the songwriting royalties are shared between him (the lyricist) and the original song's author.

Right, but my point was that the subject of the song is what's being parodied, more than the tune it's sung to. Example: "I Lost on Jeopardy." He may have got permission from the Greg Kihn Band, but what about Merv Griffin?
posted by Sys Rq at 3:15 PM on January 1, 2012

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