Can you use revamped copyrighted music in non-commercial game?

[Alkorri]

Hi there, everyone. I've been reading a few threads on copyright, this in particular, but in the end I decided to ask to make it clear once and for all:

I want to make a RPG Maker fan game about an existing video game, for example Dark Souls or Dragon Age etc. It's going to be a parody, and I'd like to ask a musician to do a midi version of one of the popular themes from that game. I am not familiar with musical terms at all, but one musician I spoke to called it a "revamp".

Is this allowed however? This fan-made will not ever be commercial - it's just for fun, simply for love of that series. The theme  song will still be recognisable (as in, it's not a significantly reinterpreted work), just as a midi tune. Could anyone enlighten me? 

 

[djDarkX]

If it's blatantly the same and musically the same, it would be illegal, but if it's similar, like a remix with more than subtle changes or an homage of said piece, it would not be.  A good composer would know how to mimic certain styles and make it sound like something else without stepping all over copyright so that the composer nor the game developer get in trouble.

If it's blatant, you'd hear it right away and know.  Even the most uninitiated would be able to hear if it's a copy or near to that.

 

[Sharm]

In my understanding there are two different copyrights involved in music, one for the composition and one for the performance. The person who makes a cover (or revamp or remix or whatever) of someone else's composition has a copyright for that performance but not for the composition. When using a cover (or whatever) you need both the rights to that particular performance and to the composition itself.

 

[Alkorri]

Thanks for replying, djDarkX, I was hoping you would weigh in. Hmm, I don't know the difference between a remix or a revamp (or are they the same thing?) but yes, it's certainly an homage. I guess I could ask the musician to "mimic" certain styles, but I worry people won't recognise the tune.

@Sharm - Thanks, Sharm. Alright, now I'm confused. So from my understanding, I have to buy the original song before I can get anyone to do a midi version that sounds a bit like the original, but not quite? (according to djDarkX)

 

[Andar]

No, buying the original song is almost impossible - you'll need to buy a licence allowing you to use it, that's something different than buying a song.


And the difference between a cover, a remix, a revamp or a hommage is mainly how much of the original song remains and how much of it was new/changed by the performer. And you won't find any fixed rules about that, because it's mostly the opinion of the judge in the court that counts, and those opinions can change depending on which judge you got.


So this is not a good area to experiment, because even a small lawsuit can ruin someone. So you better err on the safe side and make sure that there are a lot of differences in your version...

 

[Sharm]

In most cases fair use is only for things that are completely unrecognizable from the original so there's not really a way to get the song so that it's recognizable and significantly different enough to be legal.

 

[Alkorri]

So basically, I have to made sure there are "a lot of differences" in my version, but what constitutes as too little of a change? I'm beginning to rethink this fan-made game ;D

 

[Sharm]

Generally if you can take the two intellectual properties, compare them side by side and say that one was made from the other then there's not enough of a difference. The exact line is up to a judge so it's better to stay far away from it and not let it get to that point.


Fan games are almost never legal anyway, thought they are often tolerated.

 

[Ralpf]

You should be able to get a license to do a cover, how easy that would be and how much it would cost I don't know. But that is how it is done.

http://en.wikipedia.org/wiki/Mechanical_license

 

[Sharm]

Well, no, the cover isn't the desired end result, it's the song in the game. Getting a license to make a cover and sell your performance of it is different than getting the license to make a cover and use that cover in a game. They're different distribution methods and one license may not be covered by the other, plus that's a different set of considerations for the people who own the copyright. Things like brand identity can come into play for one thing.

 

[DaveyBriteRPG]

To save a lot of trouble and effort, it would probably be way easier to get a track that is in the same style and personality as the track want to use.

Almost every musician uses the same technique in terms of beat proportion and rhythm, so you could probably compose a piece that has the same feel to said track, the same structure, layout and rhythm, the only thing that would need to change is the tune itself. The melody in which the instruments are played.

It's not illegal to use the same technique after all. 

 

[Zoltor]

In my understanding there are two different copyrights involved in music, one for the composition and one for the performance. The person who makes a cover (or revamp or remix or whatever) of someone else's composition has a copyright for that performance but not for the composition. When using a cover (or whatever) you need both the rights to that particular performance and to the composition itself.

You should tell the music industry that(I doubt It's correct though), people rip off songs all the time in the music industry, and sell it as their own piece, yet It's obvious to everyone It's a parody of said song or a recomposed song with very few changes.

 

[Kes]

You should tell the music industry that(I doubt It's correct though),

It is correct.

For example, music by Beethoven is out of copyright for the composition.  The recording made by the Berlin Philharmonic Orchestra is in copyright.  They do not have the copyright to the composition, but they certainly have the performance copyright.

 people rip off songs all the time in the music industry, and sell it as their own piece

And just because something is done by sections of an industry does not make it legal or wise to do oneself.  So my advice to Alkorri is - don't do it.  I would follow DaveyBriteRPG's suggestion.

 

[whitesphere]

If you have musical talent, I would download a free music composition tool like LMMS (it works on Windows as well) and compose something which is similar but clearly different enough so it can't be confused with the original piece.

Basically, I second using DaveyBriteRPG's suggestion.  

And, yes, I know it's done in the music industry.  But, none of us are privy to the back-room discussions where the legal rights are worked out.  I'd guess they do something like this:

* If the 2 performers are under the same label, it's trivial, since the label holds the rights anyways

* If not, my guess is the 2 labels come to some kind of "rights sharing agreement" to avoid legal hassles

For example, Weird Al's entire music career basically revolves around parodying other people's songs.    Legally, you'd think he would therefore be in the clear.  But, he nearly always gets permission from the artist before releasing his work, both out of respect for the artist and to avoid legal hassles.  One of the times he didn't get permission, but released his parody anyways, I think he got in a fair amount of trouble (his parody for "You're Beautiful" called "You're Pitiful")

 

[Lunarea]

@Alkorri:

Look into specifically parodies and fair use. There are a lot of cases where the parody with commentary on the original piece is considered derivative work - which leaves it open to use material from the original source.

 

[Alkorri]

Really? I'll have to look it up. There's so many confusing opinions on the issue and the general consensus is not risk it ;D

 

[Sharm]

That's because I keep hearing about things that are clearly parody but some judge decides doesn't count as fair use. It's apparently really hard to defend a fair use claim from what I can tell.