Use of copyrighted material

[EatYourBeetS]

Hello!

I've searched a lot, but I haven't found anything clear enough about it yet,

can I use a copyrighted song in one of my game sequences (Provided that I'll give credit and the game will be completely non commercial)?

 

[Warpmind]

Ask the song's copyright holder.

No, really; that's the person whose approval you need.

 

[Bex]

Only for real Private Use.

Or if you cover the Song in a Satiric way.

 

[Andar]

Using any copyrighted material without permission is illegal, it doesn't matter if your game is free or commercial or of you give credit or not.

You need the licence or permission from the copyright holder to use anything.

The only thing that is affected by the difference between free and commercial is the amount you'll be fined and have to pay when the copyright holder goes against you. In that case a free game will mean that you "only" have to delete it and pay the lawyer's cost, which may be "only" a few hundred dollars - commercial projects often end up with fines of thousands or ten-thousands dollars.

And no, even in private use it's illegal - but if it's not on the internet and not distributed anywhere, then it's unlikely the copyright holder learns of its existance.

 

[EatYourBeetS]

Ok I'll try asking him for permission, don't think he will answer me though 

 

[Sausage_Boi]

How does fair-use play into this? The courts have ruled, repeatedly, that anyone can use any copyrighted material under Fairi-Use.

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

Yet, I never hear Fair-Use mentioned, but it is a very important aspect of Copyright Law. (Granted, if your game is SOLELY entertainment, you won't have a leg to stand on...)

 

[EatYourBeetS]

I've read about fair use, but it only explains what is not sufficient to make an use fair, and it doesn't explain clearly enough what is sufficient. I'd use that song only as ending sequence soundtrack, how can I check if it is fair use? 

 

[bgillisp]

I had to look this up for a classical song for my game. From what I could figure out, for older (classical) pieces, the song itself is not copywritten, but the performance of the song is. So, I could use the song, provided I had someone else perform it first.

I don't know if that applies to your song, though if it did, it might explain how come we can have 3 copies of the same song on the radio that are < 20 years old here in the US, all by different artists.

 

[EatYourBeetS]

It is actually quite recent, January 2006, and I wanted to use the original song directly, is it mandatory to have it be performed by someone else?

Edit: sorry, I misunderstood what you wrote, ignore what is above 

 

[Andar]

How does fair-use play into this? The courts have ruled, repeatedly, that anyone can use any copyrighted material under Fairi-Use.

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

Yet, I never hear Fair-Use mentioned, but it is a very important aspect of Copyright Law. (Granted, if your game is SOLELY entertainment, you won't have a leg to stand on...)

Yes, but the reason why it isn't mentioned is because it doesn't apply in 99,9% of the cases discussed in this forum.

Read the article in the link - Gaming/Entertainment is NOT one of the purposes for which Fair use was/is intended, so the only way to apply it is in a parody - which almost automatically means you have to change the copied work and can't use it as-is.

Second, most fair uses laws limit either the content or the distribution - giving the full work to the open public unchanged will never be allowed as fair use, you either have to use only parts ("citing" or "referencing"), or limit the distribution ("teaching in a classroom", not placing it anywhere online) or so.

Third, "Fair Use" is a DEFENSE AFTER being sued and called for copyright infringment. Which means that you already have to pay for your lawyer and wait until the judge agrees with your interpretation of fair use to get that money spent on the lawyer back. And if the judge rules against you, you'll have to delete your game AND pay the law costs in addition to possible fines.

Sorry, but fair use isn't mentioned to protect fangames or any other use of copyrighted material in games because it DOESN'T protect you in these cases, unless it's an obvious parody using only parts of the material and not simple full copies.

 

[EternalShadow]

Fair Use generally applies to educative works, or works wherein the original is linked to but not expanded upon, such as via a search engine. Additionally, news reporting is permitted to use some works under fair use for the purpose of reporting on that paticular work - such as, for example, a piece of music which can be heard by deaf people and so a sample is provided. News reporting often allows the reporters to come into contact with the original copyright holder anyway, so they can be contacted further about their permissions - and in these cases, the full track has appeared on the news. This case is similar to commentary, which may include reviews. Game Development doesn't fall under fair use, unless it is an educational game specifically about that [musical piece], but even then, it cannot be commercial as that would be someone else profiting off another's work.


I am not a laywer, but that is my understanding of fair use. If the above contradicts anything known of the law, please correct me.

 

[Dragnfly]

I think we've all heard that one song and thought "wow, that would fit perfectly as the theme song to my game!". But all you can do is ask the rights holder. This could involve great cost, dealing with agencies and even foreign translation so that's why you usually either see people just not use it or shun the law and community and do it anyway at their own risk (not advised).

For me it's Hand of Sorrow by Within Temptation. So perfect for my current project. I did ask permission to use it but never got a response. I figure that's what happens 99% of the time. I also intended to ask Steam Powered Giraffe if I could use their likeness and a chiptunes-style version of Brass Goggles for a steampunk-themed town but that town is no longer in the game so I didn't bother asking further.

 

[Sharm]

Bgillisp brought up something that I think needs to be clarified. Eventually the copyright on something goes away, the copyright holder has died and there's no one who now owns the rights. This is really only true with very old music, such as classical pieces, which is why they've been used in all sorts of things such as background music for cartoons. There are some songs where the original composer has died but other people now own the rights and protect them, such as the "happy birthday" song. Those songs, even though they're old, are still protected by copyright law.

It's also true that the copyright of the performance is separate from the song itself.  If you want to use a cover of a song in your game you will need the permission both of the composer and of the performance artists.  If multiple performances exist of a song, it doesn't really mean anything about the state of the copyright.  It may just mean that the composer sold performance rights to multiple people.