Using (C) material in non-educational non-commercial work
- February 23, 2006 @ 7:56pmetko says:Hi, obviously this is my first post.
I am glad that I found this site and I hope someone will finally ansewer my questions :). Thanks for any reply in advance. To clarify situation here is tiny introduction:
With recent release of Quake 3 game engine under GPL, me and couple of my friends, we decided to try to make our own simple game based on that technology. GPL of this release covers only that game technology and the original Quake 3 game assets (art, character models, textures, music) belong still to id software, and are protected by (C). However this isnt very big problem as we plan to provide mostly our own assets without relying on the ones used by original game.
And now we get to my problem ;). Most of us have experience with 3D models/Quake 3 specific data/texture creation, but not with music. Within this game of ours, we would like to use some copyrighted music for atmospheric background. We want our game to be distributed through net and to respect GPL. I have managed to get permision to use copyrighted music of some "smaller"/underground authors, under condition our game will be non-commercial, which is ok and what we want. This music makes most vital part. But there are places where we want use more poppy/classic/normal music. After reading some documents on the net I know that to use that music I need author's permission, whic is problem with more normal bigger bands. They completely ignore my emails, and companies producing their records ignore them too. So if I include some tracks of this artists into our game soudrack, could this be considered fair use? I will of course credit their authors but as game will be availible for free download I guess there might be some conflicts with the copyright holders.
I forgot to mention that this game is hobby project and there is no guarantee that we will manage to finish it, however we will try to do our best to finish this project. I repeat this game will be non-profit, but it is not educational project, just proof of concept for us that we are able to produce such thing.
- February 24, 2006 @ 8:35amCOvalle says:Sorry for the short reply- I will look at fair use issues later, but we'd need to know more information to evaluate fair use.
I wouldn't use the music, personally, because the risk of a lawsuit with commercially available music is fairly high.
Also, without knowing more detail, I would note that tracks are generally considered complete works in themselves, and licensing music to games is an increasingly valuable market for commercial enterprises. My initial reaction would be that you could not make a valid fair use claim in this situation.
- February 24, 2006 @ 1:26pmMFakouri says:Hi, Etko.
I read your message and I agree with COvalle that it is not advisable to use music you do not have permission to use. Here are my thoughts about the situation, based upon what I know from your email. Please note: I am not a technology expert or a lawyer.
Copyright Owners’ Rights
From what I understand, users of your game will have to download it from the web to play it. By posting your game on the web, you are distributing your game to Internet users all over the world. When players download the game to play it, they make copies of the game. Also, if a user played your game and heard music included with it, this *might* be considered a public performance of the music.
Distributing a work, copying a work, and publicly performing a work are the rights of the copyright holder. If you include someone else’s music in your game without permission, you are infringing on the rights of the music copyright holder. There may be additional complications, such as the composers’ contract with their recording company.
Fair use allows people to use copyright-protected works for purposes of commentary, reporting, education, and other purposes that benefit the public. For a more complete discussion of copyright and fair use, please see the website of the Copyright Management Center at Indiana University-Purdue University http://www.copyright.iupui.edu/quickguide.htm.
To determine whether the use of a work falls under fair use, four factors are examined.
Purpose of the use – Nonprofit and educational uses are favored. Your use of the songs would be nonprofit, so this factor may weigh in your favor. It would be more strongly in your favor if your game were educational.
Nature of the work used – Use of factual work is more likely to be considered fair than is creative work. You would like to use music, which somebody had to sit down and work to compose. This factor weighs against you.
Amount of the work used – The larger the fraction of a work used, the less likely fair use can be claimed. Another consideration is whether you use the “heart” or “core” of a work. This is important for using literature and film. Finding the “core” piece of a song might be more difficult. (Does anyone else have thoughts about this?)
Effect of the use on the market for the original work – If your use of a song would diminish its commercial market, this factor weighs against fair use. Think carefully about this because this factor is often given more weight than the other three. If somebody downloads a game that includes a song, would that person turn around and pay for another copy of that song?
For a much more complete list of fair use criteria, please see this Fair Use checklist: http://www.copyright.iupui.edu/checklist.pdf
Does anyone else have additional opinions?
- February 24, 2006 @ 11:42pmetko says:It seems, like I feared, that I can not argue that our use of whole music tracks is fair use. We would violate almost every requirement except being non-commercial. MFakouri: [quote] From what I understand, users of your game will have to download it from the web to play it. By posting your game on the web, you are distributing your game to Internet users all over the world. When players download the game to play it, they make copies of the game. Also, if a user played your game and heard music included with it, this *might* be considered a public performance of the music. [/quote] Yes it's exactly like you described (considering distribution). I guess the only way to avoid being sued is to painfully get permission from everyone whose music we will use. Other way to solve this, as I recently found out, seems to be finding something similar to what we need within creative commons licensed works compatible with our project. Thank you very much for your analysis.
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