Chiptune Copyright Question

[Meteo Xavier]

Here's a rather interesting question I've yet to see on the subject of music copyright in our corners and circles and I thought it might be of interest to the community.

A couple months ago I had this idea for an album I wanted to do down the road - I am interested to do a chiptune prog-rock style arrange album of old church hymns and donate it as a product commodity to my church as something that can generate revenue directly to their donation/offering books. In other words - make up a church bandcamp page, print some out for sale at $5.99 each to be next to the bulletins - each $5.99 purchase is 100% donation to the church.

The problem I run into then is that I don't do 8-bit SFX engineering and I like to supplement my 8bit tracks with famous chiptune SFX (Mega Man, Zelda, etc.) and then question comes to mind:

Is it copyright infringement to use chiptune SFX on an album designed to generate revenue as a donation to a religious entity?

I guess the main reason I ask is because I'm curious on how copyright stuff like that works in the context of donation and thought the community might like to know as well. I can always go without using SFX, but I'd like to know all the same.

Thank you!

[Brandon Strader]

Youth amounts in church are dwindling. You'd have more luck selling straight prog to an older audience than chiptune.

"Revenue as a donation" is what non-profits (like Churches) do.

Chiptune sound effects would not cause any problem.

Also saying "you can have this with a minimum donation of" is basically a bass-ackwards way of saying "it costs this much to purchase this item" and should not be considered a donation. A donation is when you offer something for free and allow people to pay what they want. That's more of an ethical dilemma than how it actually is legally, though, I think.

[KyleJCrb]

I'm just confused as to who you think might take legal action against you if you use chiptune sounds. I don't think anyone holds a copyright on synthesizer noises.

EDIT: Wait, I understand now. You mean like, sound effects from games in particular. You'll probably be fine.

[Brandon Strader]

Considering there were like SO many Sonic Clones... and I don't remember any of them getting sued out of existence, hehe...

[Meteo Xavier]

I mean like if I wanted to use ripped Mega Man chiptune SFX or the SFX from the NES Zelda games in these tracks.

[orlouge82]

Here's a rather interesting question I've yet to see on the subject of music copyright in our corners and circles and I thought it might be of interest to the community.

A couple months ago I had this idea for an album I wanted to do down the road - I am interested to do a chiptune prog-rock style arrange album of old church hymns and donate it as a product commodity to my church as something that can generate revenue directly to their donation/offering books. In other words - make up a church bandcamp page, print some out for sale at $5.99 each to be next to the bulletins - each $5.99 purchase is 100% donation to the church.

The problem I run into then is that I don't do 8-bit SFX engineering and I like to supplement my 8bit tracks with famous chiptune SFX (Mega Man, Zelda, etc.) and then question comes to mind:

Is it copyright infringement to use chiptune SFX on an album designed to generate revenue as a donation to a religious entity?

I guess the main reason I ask is because I'm curious on how copyright stuff like that works in the context of donation and thought the community might like to know as well. I can always go without using SFX, but I'd like to know all the same.

Thank you!

Offhand, I would think that it probably qualifies as a derivative work and there shouldn't be any infringement issues. My gut tells me that there isn't much, if any, difference between for profit derivative works and "revenue for charity" derivative works, but I'd have to research a bit to get a definitive answer.

[Ab56 v2 aka Ash]

The Internet is a poor substitute for legal advice. Consult a licensed attorney in your area if you expect to be doing anything that could get you sued. (Sorry if this sounds rude.)

[yangfeili]

Don't know anything about the legal issues, but just wanted to say that that sounds like a cool project and I'd definitely pick up a copy.

Reminds me of this one time I was at a LAN party with a bunch of friends. Someone said something that reminded us of a line from an old church hymn from our days together at a Catholic grade school, and though hardly any of us were still particularly religious, we all simultaneously broke into song (as we continued our deathmatch).

[Benjamin Briggs]

well the zelda dubsteb guy has made a fuckton of money straight-up selling remixes of copyrighted vgm and nothing has happened to him yet afaik

so I think the general attitude at this point is "fuck it, you're probably not going to get sued, and if you do, change your e-mail address."

[Meteo Xavier]

The Internet is a poor substitute for legal advice. Consult a licensed attorney in your area if you expect to be doing anything that could get you sued. (Sorry if this sounds rude.)

Kinda defeats the point of community discussion but ok.

[zircon]

You would be better off recreating the SFX yourself if at all possible. Virt is really good at this. Chiptunes are not themselves sound recordings. They're songs that are played through a playback system (the sound chip.) Thus chiptune SFX... I'm not sure those could be even considered musical pieces. Honestly, I don't think you will have any problem one way or the other, but try recreating them yourself to be safe.

[orlouge82]

The Internet is a poor substitute for legal advice. Consult a licensed attorney in your area if you expect to be doing anything that could get you sued. (Sorry if this sounds rude.)

I actually am a licensed attorney, but I'm not sure if I'm licensed in his area or not, which is why my earlier post should in no way be construed as legal advice. This is an informal discussion on the subject, nothing more.

Anyhow, I can research into it some more later today after some other things clear up and let you know. Again, not legal advice.

[Meteo Xavier]

I'd definitely appreciate it, Or. Thank you!

[zircon]

I actually am a licensed attorney, but I'm not sure if I'm licensed in his area or not, which is why my earlier post should in no way be construed as legal advice. This is an informal discussion on the subject, nothing more.

Anyhow, I can research into it some more later today after some other things clear up and let you know. Again, not legal advice.

Not to be hypercorrective, but:

Offhand, I would think that it probably qualifies as a derivative work and there shouldn't be any infringement issues.

This is definitely inaccurate. The right to create derivative works belongs to the creator, and by default, creating a derivative work is infringing. You can argue fair use etc. but again by default derivative works are NOT ok. The real question is whether a sound effect that itself is not even a recording but just a series of notes would be considered copyrightable to begin with.

More info: http://en.wikipedia.org/wiki/Derivative_work

[orlouge82]

Not to be hypercorrective, but:

This is definitely inaccurate. The right to create derivative works belongs to the creator, and by default, creating a derivative work is infringing. You can argue fair use etc. but again by default derivative works are NOT ok. The real question is whether a sound effect that itself is not even a recording but just a series of notes would be considered copyrightable to begin with.

More info: http://en.wikipedia.org/wiki/Derivative_work

Sorry, I oversimplified in my original post. The thing with derivative works is that it is a very broad term that applies to both what you describe and works that are primarily original but incorporate some previously copyrighted work.

Derivative use CAN mean "not okay" as in "not independent enough from the original work to be copyrightable," but it can also mean a work that utilizes older work that is already copyrighted, but builds upon it significantly so that the new work is copyrightable (obviously, the older work that is being built upon can't be copyrighted since it wasn't created by the derivative work author).

While what you are doing would probably be derivative use, I was mistaken in attributing any kind of defense against an infringement suit to that principal (again, I was writing that first post quickly without having done any research).

As far as fair use goes, that will protect you if you follow these guidelines (the four "fair use" factors under 17 USC § 107):

1. Purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Make your works as "transformative" as possible. Meaning, even though you are using chiptunes/SFX from copyrighted sources, you should arrange them in a unique fashion - something very original. If your work is transformative enough, it shouldn't matter whether it is commercial (I know yours technically isn't but it is somewhere between that and private/noncommercial).

2. Nature of copyrighted work: not going to help much here, this factor will generally weigh in favor of fair use if the work to be used is factual in nature (scholarly works), as opposed to works involving more creative expression (songs, SFX, etc). Still, not satisfying one of the factors isn't fatal to whether a work is considered fair use.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: If you are only using the sound effects from a game (and I am assuming that all individual sound effects are not independently copyrighted, which is a logical assumption), then this one should weigh heavily in favor of you. Even if you arrange a new, unique song using only sound effects from copyrighted games do to it, since the game itself which the sound effects appear is the copyrighted material, not the individual sound effects themselves, you are only using a very small portion of the copyrighted work in your derivative work, and this factor should weigh in your favor.

4. The effect of the use upon the potential market for or value of the copyrighted work: This is really the determining factor. Basically, this factor will weigh in your favor (and that of fair use) if your work has little or no impact on the market value of the copyrighted work. Seeing as using sound effects from a video game to create a new song should only increase awareness of the original video game, and thus provide a net market benefit for the original work, your work actually benefits the original work under the law.

Follow the guidelines above, and you should be good to go.

Also, every single remix on OCR is a derivative work because they all utilize previously copyrighted musical arrangements from video games. Why they can invoke fair use as a defense is because of the application of those four factors above.

[Drakken]

Out of curiosity, can I ask what your church is like? Is it a really big church, or maybe a younger congregation? I can't help but think that a chiptune prog rock album of hymns would be a very, very niche thing. This is not to be negative - as a Christian and churchgoer myself, I'm genuinely curious.

[zircon]

Also, every single remix on OCR is a derivative work because they all utilize previously copyrighted musical arrangements from video games. Why they can invoke fair use as a defense is because of the application of those four factors above.

Another minor point of clarification but there is also a distinction between arrangements/covers and derivative works. If one takes an existing piece and does not substantially change the character, but rather adapts it for a new set of instruments, this is typically not considered a derivative work and subject to the compulsory mechanical licensing statute. This is how some VGM arrangers are able to sell their work without asking for permission. However, if the original work is drastically transformed, or if at any point you are SAMPLING the original sound recording then you've crossed over into derivative work territory, for which there is no compulsory licensing statute.

Of course, even if a given OC ReMix would be considered a cover/arrangement as opposed to a derivative work, that doesn't really protect us any more since we haven't gone through the compulsory mechanical licensing process. As you (rightly) pointed out we believe what we do falls under fair use.

Anyway, this situation with chiptune SFX is interesting because we're NOT talking about sound recordings. An analogy would be if I smacked my hand against my guitar as a sound effect in a film score, then you heard that and smacked YOUR hand against YOUR guitar to create a very similar effect. You didn't sample my sound recording (and chiptunes aren't sound recordings anyway AFAIK, they're musical pieces with an associated playback system) and thus there's no legal problem. But it's an interesting situation because some SFX could maybe be construed as short musical pieces or jingles, however unlikely that may be.

A classic example in the world of synthesizers is the distinction between selling recordings of sample-based hardware vs. analog/digital synthesizers. You cannot copyright the output of an oscillator. You can patent the design of the oscillator (maybe), but not what comes out of it. Likewise, there is really no way to copyright a particular group of knob and switch settings. So, there is no legal problem with me taking a true synthesizer and recording sounds from it, even if I didn't create the exact settings for those sounds. I could even sell the sounds later. On the other hand, some synthesizers utilize sound recordings, or a mix of recordings and true synthesized sounds. In this case, it would be illegal for me to record and sell the sounds.

[Ab56 v2 aka Ash]

An analogy would be if I smacked my hand against my guitar as a sound effect in a film score, then you heard that and smacked YOUR hand against YOUR guitar to create a very similar effect. You didn't sample my sound recording (and chiptunes aren't sound recordings anyway AFAIK, they're musical pieces with an associated playback system) and thus there's no legal problem. But it's an interesting situation because some SFX could maybe be construed as short musical pieces or jingles, however unlikely that may be.

If the method of creating the sound is at issue, it sounds more like a patent question than a copyright question.

[zircon]

Ah but you can't patent playing techniques or the output of an instrument. You can perhaps patent the design of an entirely new instrument, but Fender can't copyright or patent "the Fender sound". If someone created a guitar that sounds 100% like a Fender without actually infringing on the patented blueprints to manufacturing a Fender, that would be fine. This happens all the time in the world of software synthesizers. There are countless virtual emulations of hardware synthesizers which obviously have an entirely different design but are made to sound indistinguishable from the real thing. And there is no intellectual property issue there.

Buuuut chiptune SFX are definitely in a weird place because something like the 1up sound from Mario is a clear musical phrase. So I don't know if that would put it into copyrightable territory or if it's too short/generic (much like how I couldn't copyright a 2 second C major arpeggio.)

[Meteo Xavier]

Out of curiosity, can I ask what your church is like? Is it a really big church, or maybe a younger congregation? I can't help but think that a chiptune prog rock album of hymns would be a very, very niche thing. This is not to be negative - as a Christian and churchgoer myself, I'm genuinely curious.

It's relatively small, Lutheran, and filled with old people, but that's ok, these people aren't rubes. They've known me for 23 years and if they didn't have a problem with me showing up one day with a Japanese bride without ever showing a hint of heterosexuality to them before, they'd be cool with this too.

I'm well aware a chiptune prog album of hymns is a pretty strange idea for a relatively conservative base - that's the point. I love to shatter expectations and if I can get the album done ok, I don't see a downside to this idea at all - past the question that made this discussion possible in the first place that.

And as for that, yes, Orlouge, these sound effects are purely going to be used only as atmosphere or percussion. No part of the compositions from the game would be featured at all - just SFX for atmosphere and percussion.

[orlouge82]

Another minor point of clarification but there is also a distinction between arrangements/covers and derivative works. If one takes an existing piece and does not substantially change the character, but rather adapts it for a new set of instruments, this is typically not considered a derivative work and subject to the compulsory mechanical licensing statute. This is how some VGM arrangers are able to sell their work without asking for permission. However, if the original work is drastically transformed, or if at any point you are SAMPLING the original sound recording then you've crossed over into derivative work territory, for which there is no compulsory licensing statute.

Of course, even if a given OC ReMix would be considered a cover/arrangement as opposed to a derivative work, that doesn't really protect us any more since we haven't gone through the compulsory mechanical licensing process. As you (rightly) pointed out we believe what we do falls under fair use.

Anyway, this situation with chiptune SFX is interesting because we're NOT talking about sound recordings. An analogy would be if I smacked my hand against my guitar as a sound effect in a film score, then you heard that and smacked YOUR hand against YOUR guitar to create a very similar effect. You didn't sample my sound recording (and chiptunes aren't sound recordings anyway AFAIK, they're musical pieces with an associated playback system) and thus there's no legal problem. But it's an interesting situation because some SFX could maybe be construed as short musical pieces or jingles, however unlikely that may be.

A classic example in the world of synthesizers is the distinction between selling recordings of sample-based hardware vs. analog/digital synthesizers. You cannot copyright the output of an oscillator. You can patent the design of the oscillator (maybe), but not what comes out of it. Likewise, there is really no way to copyright a particular group of knob and switch settings. So, there is no legal problem with me taking a true synthesizer and recording sounds from it, even if I didn't create the exact settings for those sounds. I could even sell the sounds later. On the other hand, some synthesizers utilize sound recordings, or a mix of recordings and true synthesized sounds. In this case, it would be illegal for me to record and sell the sounds.

Maybe I'm misunderstanding what you're saying, but I don't really understand your opposition to remixes on OCR being labelled as "derivative works," since that actually affords them copyright protection.

Here's the definition of "derivative work" in U.S. Copyright Act (17 U.S.C. § 101 if you're curious):

A "derivative work" is a work based upon one or more preexisting works, such as a translation,

musical arrangement

, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."

[Emphasis added]

I wasn't saying that OCR remixes are derivative works because they use samples from games or anything like that (although that is true for some of them). I was saying that they are derivative works because they are not 100% original creations. They use musical arrangements from copyrighted video games.

And OCR/remixers don't have to go through the compulsory license process because compulsory licenses forbid remixing of musical arrangements. Here's the Copyright Act section on it (17 U.S.C. §115(a)(2)):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but

the arrangement shall not change the basic melody or fundamental character of the work

, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

[Emphasis added]

The reason for this is because derivative works are independently copyrightable, and that would create some major complications in compulsory license law.

In any case, OCR remixes are indeed derivative works, meaning that the original aspects of their arrangements are copyrightable, but they are non-infringing because (as mentioned earlier), they fall well within fair use protections.

EDIT: As far as the sound effects go, I have to re-check some of these older cases I've read, but I'm pretty sure that jingles such as the Mario 1up sound are only copyrightable insofar as they are "musical arrangements", not the sound effects themselves. The cases I've read were more related to commercials/marketing, so I don't know how they'd apply to video games necessarily.

[AngelCityOutlaw]

Lol....this thread.

[Meteo Xavier]

Lol....this thread.

And why exactly?

[orlouge82]

And why exactly?

He's jealous of America's "fair use" when he's stuck with Canada's "fair dealing" laws

[Frederic Petitpas]

[........]