I’ve made no secret that Final Fantasy XIV is my MMO of choice recently. (I’m even beginning to stream it on Twitch occasionally too, come hang out!) Recently a new feature was added that has raised a lot of legal questions (and ruffled the feathers of many legal opinion-havers on reddit and elsewhere online), so I thought I’d try to address a few of them.
Bards Can Play Music Now?!
The 4.15 patch for Final Fantasy XIV was released last week, and among its additions to the game is a new “Perform” action that allows Bards to actually play songs note by note on their harps in-game.
Look at all those notes!
This feature has been requested by many of the game’s players for some time, as Final Fantasy XIV features a relatively large community of dedicated role-players who enjoy acting out stories with other players within the game. A feature like this is just another way for such players to really get “in character” within the game (assuming that character happens to be musically inclined).
While the game director’s intention with this feature might’ve been to give players the ability to play their own compositions (and/or melodies originally from FFXIV itself), I think we all knew what was going to happen as soon as this feature went live. The first time I logged into the game after patch 4.15, everywhere I walked I was within earshot of someone playing one of the ocarina songs from The Legend of Zelda: Ocarina of Time, and almost immediately there was a wiki up on reddit with various melodies.
“Who’s been playing MY music?!”
Copyrights on Music
Therein lies a potential problem with this feature: musical works are protected by copyright, and music copyright in particular can be a tricky, complicated onion: there’s a bunch of layers (I almost typo’ed that to “lawyers,” which could also be accurate), and they can often lead to tears when not handled properly.
Copyright protects “original works of authorship fixed in a tangible medium,” for example, literature and music. The copyright to a work includes a whole bunch of distinct exclusive rights regarding the use of that work, including the right to publicly perform the work, the right to sell and distribute duplicates, and the right to make derivative works.
A typical recording of a song has (at least) two separate copyrights:
The musical composition is the music itself as written by the composer(s), in other words, all the notes that comprise the song along with any words. Think of this as the sheet music, with all the information one would need to perform the song.
The sound recording is the recording of a musician’s performance of the song, the thing you’d buy from iTunes or Amazon as an .mp3 or, in ages past, a CD or cassette tape.
Infringement issues with music often deal with sound recordings (e.g., downloading an album off a torrent site, using a song from your iTunes library in a YouTube video without a license, etc.), but in this case, we are more concerned with the copyright on the compositions of songs.
When a FFXIV player uses the Bard’s “perform” action in a “public” place within the game to play a pre-existing song composed by someone else, if that composition is still protected by copyright then that player is technically infringing that copyright with an unauthorized public performance of the composition.
(An additional layer of copyright here is that unlike, say, a typical musical instrument, here the performance is being done through the use of a video game, which is itself a copyrighted work.)
The situation is further complicated if the performance is recorded and uploaded to a video sharing site like YouTube, or livestreamed on Twitch.
Square Enix’s Official Policy
There’s been a lot of messages from Square Enix sources to the players on this topic, so some people are understandably confused.
This feature, and Square Enix’s request to users to refrain from using it to infringe third-parties’ copyrights, was first brought up in a post on the official FFXIV forums made on September 2, 2017, made by Matt “Bayohne” Hilton from the FFXIV Community Team.
Matt implores players:
“However, please make sure to perform music that is FFXIV-related. We don’t mind if you’re using it for personal use; however, if songs and music from other titles are being recorded and uploaded frequently, we may have to remove the feature, so we would like to ask for everyone’s support…”
In the game itself, when you talk to the NPC that unlocks the Perform feature, the game gives you the following screen and won’t unlock the feature until you agree:
I like to imagine that the NPC is straight up saying all this to you in-game and has a clipboard with him with papers for you to sign.
The “FINAL FANTASY XIV Materials Usage License” referenced in that in-game Performance Actions Agreement was updated on November 20, 2017 to include additional conditions regarding the bard-specific “performance actions” (emphasis added).
In relation to any functions within the game which allow you to perform virtual musical instruments (“performance actions”), you are strictly prohibited from performing the music of any third parties. You hereby warrant that your performance using the performance actions will not infringe the rights of any third parties and you shall indemnify us in respect of any breach of such warranty. You may record and share your performance of the FINAL FANTASY XIV original score excluding the songs entitled “Answers”, “Dragonsong” and “Revolutions” or original songs and/or melodies using the performance actions in accordance with this Agreement. Furthermore, by using the performance actions, you acknowledge and consent to any third party recording and sharing of your performance online. You also hereby agree that we may block or otherwise restrict your access to FFXIV if you do not comply with the terms of the licence contained herein.
This provides the clearest picture of what officially is and isn’t allowed. While some users might (understandably) think the original forum post that asked them to keep the music “FFXIV-related” meant “any music that is used in FFXIV,” this license specifies that only music from the original score of FFXIV is explicitly allowed to be recorded and uploaded (in addition to users’ original works, of course), and even explicitly excludes three songs from that score: “Answers,” “Dragonsong,” and “Revolutions.” This then also excludes all songs that are featured in FFXIV but originally come from other Final Fantasy games (e.g., “Tina/Terra’s Theme” from Final Fantasy VI, “Battle on the Big Bridge” from Final Fantasy V, the ever-creepy “Calcabrena Theme” from Final Fantasy IV, the “Gold Saucer Theme” from Final Fantasy VII, and many many others).
While this exclusion might seem strange at first considering it’s all music from the Final Fantasy franchise that is published by Square Enix, there is a reason. The FFXIV team likely only has the full rights to music that was originally composed for FFXIV itself, and thus can grant permission to others (e.g., to record and share performances) of only that music. All the other familiar in-game music that came from other Final Fantasy games may have licensing restrictions from other copyright holders that prevent the FFXIV team from granting full permission to its users to record and upload performances of those songs.
While the exact reasons why are likely known only to the FFXIV team and Square Enix’s legal department, I can take a guess. For instance, many of the most memorable musical themes in the Final Fantasy franchise were composed by Nobuo Uematsu, but he actually left Square Enix’s employ in 2004 to become a freelancer. While Uematsu did occasionally compose music for Final Fantasy after his departure, I don’t know what rights Uematsu may have reserved on that music. It’s possible that Uematsu retained ownership of the copyrights to that music and simply licensed them to Square Enix for use in games (including FFXIV) but did not include a right for users to publicly perform or distribute recordings of performances of that music. Similarly, the three FFXIV-specific songs that were singled out in the FFXIV Materials Usage License (“Answers,” “Dragonsong,” and “Revolutions”) were also composed by Uematsu, while much of the rest of the FFXIV score from 2.0 onward was composed by Masayoshi Soken.
(In addition, in a recent video the game director Naoki Yoshida (commonly known as Yoshi-P) requested his users refrain from posting third-party sheet music, or to take it down for those who’ve already posted such materials.)
YouTube Videos of Bards Performing
As of November 30, 2017, it seems Square Enix has begun to take manual actions against “Bard performance” videos on YouTube. Bard performances of everything from copyrighted third-party compositions, songs from previous Final Fantasy games used in FFXIV, and even public domain compositions have been taken down.
(As of this writing, videos on other sites such as Twitter still seem unaffected.)
On YouTube, a search for “FFXIV bard performance” turns up mostly songs found within FFXIV, some original songs, and still a copyrighted third-party song here and there. For the moment it seems Square Enix isn’t issuing DMCA takedowns on these videos, but rather has people on their end manually searching and issuing Content ID claims to block any videos they find that contains third-party content. But as it’s a manual process, they’re likely going to miss some.
(In other words: if other people’s videos have been taken down but yours hasn’t, it doesn’t necessarily mean Square Enix thinks it’s okay, it more likely means that they just haven’t gotten to yours yet.)
I mean, that “All Star” video is right there.
Wait, can they do that?
Yep.
Previously I mentioned that there are multiple copyrights to consider in this situation. Aside from the composer’s copyright on the music, FFXIV itself is still a copyrighted work. That means Square Enix has the exclusive right to control how that work is distributed or publicly performed.
In the FINAL FANTASY XIV Materials Usage License, Square Enix is giving its users limited permission to use FFXIV materials (such as videos, streams, and screenshots) in certain ways, subject to the terms and limitations they’ve outlined.
And since the license includes an agreement not to use the game’s features to perform, record, and share third-party music, any player doing so is violating the agreement and Square Enix is within their rights to withdraw their permission to use the game’s materials (or even take more drastic action like suspending or banning the player from the game, though such extreme action seems unlikely at the moment).
Why are they doing this?
You might be asking, “Why are they worried about other people’s copyright infringement? If their players infringe a third-party’s copyright, wouldn’t that ultimately be between the player and the third-party?”
Not necessarily.
Square Enix is trying to avoid looking like they’re enabling (or worse yet, encouraging) their users to infringe the copyrights of others through the features of their game. Even where Square Enix isn’t the one directly infringing those copyrights, they may be held liable for contributory copyright infringement if they: 1) know of a direct infringement (i.e., their users), and 2) they “materially contributed” to that infringement.
They might also be held vicariously liable for the copyright infringement of others if: 1) they have the right to control the infringing activity, and 2) they “derive a financial or commercial benefit” from the infringing activity.
Even if you don’t agree with their decisions, you should hopefully at least understand why they might be concerned. And MMOs have been sued before for this sort of thing.
In 2004, Marvel Comics sued the publisher, developer, and administrator of the MMO City of Heroes for copyright and trademark infringement. Marvel alleged that because City of Heroes’ character creation engine allowed players to create characters that were extremely similar to copyrighted and trademarked Marvel characters such as the Incredible Hulk and Wolverine (and to even name them in the game as such), the makers of the game should be held liable.
While that lawsuit was ultimately settled out of court, it’s a stark (no pun intended) reminder that a company may want to avoid even the appearance of contributing to or otherwise enabling the infringement of the rights of third-parties where those parties may be particularly litigious. Even if a party prevails, litigation is an extremely expensive and time-consuming process, and a prudent company will try to avoid inviting it whenever possible.
Tee El Dee Arr
Ultimately, I know people are gonna do what they’re going to do and play what they want to play. Within the world of FFXIV, just like in the real world, people play music composed by other people all the time without always being asked to pay licensing fees or getting sued for copyright infringement. Legally speaking, a musician playing on the sidewalk isn’t likely to catch anyone’s attention, but if you start playing front of larger crowds or making music videos and uploading them to YouTube, people are going to start to notice.
In general, just don’t share recordings of you performing third-party songs or sheet music to third-party songs and you should be fine.
I just hope this helps shed some light on some of the legal concepts surrounding this issue, and music copyrights in general. If people continue to have a lot of questions about this topic, I may just do a follow up “FAQ” post.
(And if you do play FFXIV, I’m Bengoshi Kengoshi on Balmung.)
Anyway, here’s Wonderwall.
Just kidding.
The Geek Law Journal 
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