Independent lawyer on the conflict between the authors of Atomic Heart and representatives of Mirage: "The situation is not surprising"

Why a dispute about the right to use the song “Music connected us” in the trailer of the Atomic Heart game turned out to be possible, as well as how to protect yourself from getting into similar situations, — he told in his column on App2Top.ru Roman Lukyanov, Managing Partner of Semenov &Pevzner Law Firm.

Roman Lukyanov

The situation with Mundfish and “Top7”, unfortunately, does not cause much surprise.

The domestic musical repertoire of the 90s and 00s in the last 5 years has increasingly become the subject of litigation between different publishers, labels, agencies. Companies that have absolutely nothing to do with him become an unwitting participant in these conflicts, which is what happened with Mundfish.

Why is the repertoire of the 90s and the noughties considered problematic? This is due to two circumstances.

Firstly, in 2004, the domestic legislator introduced a new competence into the then–current Law “On Copyright and Related Rights” – “making public”, which in fact is the so-called “Internet competence” (the right to use works and objects of related rights on the Internet). The amendment entered into force in 2006. Accordingly, all previously concluded contracts did not contain such authority, and the question of who has the right to “the Internet” is decided differently by different courts in different cases (depends on the wording of the contract). There is no consensus here, although recently Russian judicial practice proceeds from the fact that if the authority was not named directly in the contract, it remained with the author / performer.

Secondly, in 2008, the fourth part of the Civil Code of the Russian Federation came into force, which, among other things, replaced the Law “On Copyright and Related Rights”. In the new part of the Civil Code of the Russian Federation, another power has appeared “inclusion in the composition of a complex object” (including in an audiovisual work). In industry slang, this competence is called “synchronization”. There were many disputes (including judicial ones) over this right, but eventually it was recognized as an independent separate method of use. Simply put, if this method is not explicitly provided for in the contract, then it is considered not transferred.

In practice, many companies that once in the late 90s – early 00s, received the rights to music, claim synchronization and the Internet, even when these rights were not transferred to them.

Two other important factors should also be taken into account.

First. “Top7” is an affiliate of the publishing house “JAM” (the same director and founder). The publishing house “JAM” only in 2021 filed about 40 lawsuits in various courts on the fact of “illegal” use of its catalog. These trials are held with varying success. This circumstance suggests that for “Top7″/”JAM” the courts for the rights to music are a common thing. At the same time, “JAM” begins to face lawsuits from the authors themselves (for example, the case of R. Ryabtsev against the publishing house “JAM”, A40-194095/2020).

The second factor is that the NMI filed a lawsuit against “JAM” for recognition of exclusive rights (for which repertoire is unknown, but it may be just for “Mirage”).

How can such situations be avoided? In the order of humor: not to synchronize the Russian repertoire of the 90s and 00s.

Seriously:

1. It should be understood that in relation to music there are two types of rights – copyright (for the musical work itself) and related (for a phonogram, sound recording). If you plan to use the original soundtrack, you need both types of rights. They, in turn, can be located at different labels, publishers, authors, performers. If you plan to record your own soundtrack – you have enough copyright.
2. If you plan to use music not in the original, but to record a cover/remix/reworking – you need a license for reworking.
3. If you plan to use music in the game / in the trailer, you need at least the rights to synchronize (include in the game / audiovisual work), make it available to the public (Internet), playback (recording to a file, in computer memory), distribution (if the game will be released on physical media). If you plan to recycle, you also have the right to recycle.
4. Before buying rights (concluding a license deal), it is extremely important to check the entire chain of rights (how they got to the licensor, from whom, when – and so on to the author / performer), compare the volume that you buy from the licensor with the volume that the licensor himself and any other company / person in the chain of rights received. This volume should coincide in terms of time, territory, and methods of use. The contracts should also provide for an absolute right to sublicense.
5. In the license itself, it is important to prescribe a model of behavior of the licensor, in case the rights are disputed (his duty is to get involved in the process, settle all disputes, and so on). These provisions should be detailed as much as possible.
6. To check the possible open court database (including by using special software) and open source (“Yandex“/Google) – whether litigation for the acquired repertoire, and if so, what the outcome.
7. Check the music streaming services for the presence of the necessary composition and copyright there (who is listed as the copyright holder). By itself, this method is not very reliable, but in combination with others it can give a hint.
8. About YouTube. YouTube is subject to the DMCA rules. If someone strikes your video, and you are sure that you have the rights (and all the documents are available) – submit a counter claim, attach the documents. According to the DMCA rules, you must be unblocked, and both parties will be asked to submit the dispute to the court.
9. Finally, if you find yourself in court, it is better to find a specialized lawyer, since the variability of scenarios for the development of the dispute is simply huge.