I'm having a troubled conscience over remixing and copyright

[BloomingLate]

Some time ago someone posted a thread, asking basically if you still remix and why. The conversation developed into a discussion of copyright, at which point I was a little overwhelmed and disengaged. The subject has been nagging at my conscience ever since anyway.

Basically, as the title to this post suggests: I am having issues with the fact that I am technically violating copyright law when I remix and am uploading remixes, without having any kind of license to do so. I never really knew that you can't just go ahead and remix just about everyone's stuff, but now I do. I tried to contact Nintendo about licenses and whatnot, but I never did get a response (and I learned via other sources that Nintendo is being rather "uptight" about holding on to its music).

Just now I was checking my Soundcloud profile and somehow I discovered someone actually stole one of my original tracks and posted it on their profile with no mention of the original creator. It was not remixed or anything. They even changed the title, but the song is exactly the same (which can be downloaded as mp3 off of my profile). I was disappointed to find out someone has taken something from me and potentially taking credit for it. I reported the person, but in the process realized I can be reported just as easily for the unlicensed remixing. I don't want to be a hypocrite and I like to obey the law. So for now I have taken down my remixes until I figure out how to go about things legally.

No doubt most remixers won't have such a sensitive conscience as I have, but it really does bother me. Even if the chance of being sued is slim, I want to do the right thing.

So yeah, now I want to find out how I can register my own music and how to obtain licenses for remixing (and figure out if it is worth the money). I'm not sure where to even begin. Anyone have any experience with this?

[Gario]

Well to get started, you may look into the US legal system's definitions of "Fair Use", which allows for the use of material if it's used for educational purposes, parody, or sufficiently transformative, AND if there is no profit involved in redistributing the material. It's not a bulletproof, anything-goes silver bullet for all things remixing, but it is often the justification used for the distribution of rearranged music on OCR.

If you have questions about the whole process, the basic wiki for fair use (and it's links) are a fair place to start, as well as looking at OCR's FAQ section and our content policy section (OCR has a lot of experience dealing with this very issue!).

Again, there is no silver bullet, and honestly things are resolved on a case-by-case basis, but in general that's the blanket justification for arranging VG music, which most companies understand and silently comply with.

As far as the asshat who is stealing YOUR music, there is no fair use justification for stealing your material and claiming it as their own. You made it, you have a defacto copyright on the material, so if you want to go through the effort you could get Soundcloud to remove it. Up to you, but yeah, that guy has no right to take your music as-is and simply claim it's his.

[Eino Keskitalo]

I believe (and it's just a belief, but I think it's the general belief) that (most) game companies think fan VGM rearrangements are great for marketing purposes.

Correct me if I'm wrong, but OCR has agreements with some companies that releasing rearrangements from their games is explicitly ok. Capcom and SquareEnix. I couldn't quickly find a source of the current status for this though. But this would mean you can try to get stuff through OCR from their games and it'll be 100% certified ok. :-)

Then there's copyright holders that licence their music with a permissive licence, that allows you to make non-profit rearrangements, such as https://virt.bandcamp.com/album/shovel-knight-original-soundtrack (check the licence towards the bottom of the page).

[BloomingLate]

On 3/29/2019 at 7:59 PM, Gario said:

Well to get started, you may look into the US legal system's definitions of "Fair Use", which allows for the use of material if it's used for educational purposes, parody, or sufficiently transformative, AND if there is no profit involved in redistributing the material. It's not a bulletproof, anything-goes silver bullet for all things remixing, but it is often the justification used for the distribution of rearranged music on OCR.

If you have questions about the whole process, the basic wiki for fair use (and it's links) are a fair place to start, as well as looking at OCR's FAQ section and our content policy section (OCR has a lot of experience dealing with this very issue!).

Again, there is no silver bullet, and honestly things are resolved on a case-by-case basis, but in general that's the blanket justification for arranging VG music, which most companies understand and silently comply with.

Thanks for the direction Gario. I like the Fair Use thing. Unfortunately for me this Fair Use is explicitly not available in Europe or the Netherlands (from what I've read). The available legal exceptions do not really seem applicable.

I recall that Soundcloud's policy states that by uploading material I affirm that it contains no copyrighted material that I do not own. Even if the original copyright holder would not have a problem with my remix, I would by lying when I submit the material. That kind of bums me out.

I guess this is an issue of the "spirit of the law" versus the "letter of the law". I understand that Fair Use would be our best bet (or else obtaining a license), but like you said, it isn't a silver bullet.

[Nase]

someday some dude extremely well versed in music theory is gonna educate the courts about the mathematically finite amount of compositional variation and the massive musical body of work out there and that it just isn't realistic anymore to sue over what they used to sue over thus far.

i can't understand your problem, but that day it will be solved for sure. i think it's paying homage i.e. love, respect, and that always trumps concerns over gray legality.

 

 

[Gario]

Oh, you're not in America, my apologies. Yeah, the law is different in different places (with, for example, Article 17 floatin' around in the EU placing copyright adherence on the shoulders on the webhosts along with those uploading the material themselves). Well, one bright side with all y'all people in Europe, Article 17 is something that you wouldn't need to concern yourself with, unless you were a web host, so if for example you had an arrangement posted on OCR and the copyright holder had issue with it that would become OCR's problem and not necessarily yours. It's a part of the whole non-exclusive publishing agreement you (supposedly) agree with when you send stuff to us, after all.

I did a touch of homework on how copyright works in the EU. They establish a few exceptions to copyright laws, which unfortunately does not include artistic interpretation. However, they DO allow each country to include their own separate exceptions to copyright law, of which in the Netherlands (where you're from, I believe) they include another exception saying something altered for artistic purposes (like, say, arranging VG music) and distributed shall not be considered a violation of copyright law, unless the original artist explicitly pursues the artist (and now distributor, under Article 13) staking claim to their work's copyright claim.

So for you, I believe you're legally in the clear, if you want to go arrangin' VG music, as long as the original artist doesn't come after you themselves. Hope that helps!

[BloomingLate]

12 hours ago, Gario said:

Oh, you're not in America, my apologies. Yeah, the law is different in different places (with, for example, Article 17 floatin' around in the EU placing copyright adherence on the shoulders on the webhosts along with those uploading the material themselves). Well, one bright side with all y'all people in Europe, Article 17 is something that you wouldn't need to concern yourself with, unless you were a web host, so if for example you had an arrangement posted on OCR and the copyright holder had issue with it that would become OCR's problem and not necessarily yours. It's a part of the whole non-exclusive publishing agreement you (supposedly) agree with when you send stuff to us, after all.

I did a touch of homework on how copyright works in the EU. They establish a few exceptions to copyright laws, which unfortunately does not include artistic interpretation. However, they DO allow each country to include their own separate exceptions to copyright law, of which in the Netherlands (where you're from, I believe) they include another exception saying something altered for artistic purposes (like, say, arranging VG music) and distributed shall not be considered a violation of copyright law, unless the original artist explicitly pursues the artist (and now distributor, under Article 13) staking claim to their work's copyright claim.

So for you, I believe you're legally in the clear, if you want to go arrangin' VG music, as long as the original artist doesn't come after you themselves. Hope that helps!

How about:

Quote

Congregational singing and the instrumental accompaniment thereof during a religious service shall not be deemed an infringement of the copyright in a literary or artistic work.

So what I'm going to do is slap Christian lyrics on the Donkey Kong Country soundtrack and BOOM! Untouchable My church will be praising to the tune of Aquatic Ambience. I'm pretty sure the old Reformers used popular tunes for their hymns as well.

Just kidding...

I'll have to look further into those pre-existing exceptions. I recall reading that new exceptions are not allowed to be made by individual EU countries. Or at least it will involve a long and tedious legal road before changes will happen.

I assume any copyright cases are handled on the basis of the laws of the land in which the violation takes place? Say OCR was to host a mix both in the EU and in the US and an angry copyright holder comes after you. The US side would not fall under the Article 17 that you mentioned. But the EU side would? And going by the Fair Use scheme, I guess Nintendo USA would have to phone up Nintendo Europe to come after me?

One thing that is reassuring is what people have said about the industry generally supporting the remixing efforts. I don't intend to make money off of mixing and am basically in it for the same reason most of you guys are: love for the music of our favorite games and nostalgia. To pay that tribute.
And ideally, an unhappy copyright holder is going to ask you kindly not to distribute your mixes, rather than sue you for all you're worth, without warning.

[MindWanderer]

OCR (and Game Music Initiative) is located in the U.S. and is subject to its laws.  It doesn't operate businesses in other countries so it doesn't have to follow their laws.  (This is unlike companies such as Google, which do have points of presence and child companies in other countries.)

Now, if OCR content was mirrored in another country, the mirror host might be subject to those laws.  That would be up to them; typically they'd open a dialogue with OCR about it.

[thebitterroost]

This really is the symptom of the universe in the digital era with regard to just about any artistic medium. Since you are not selling your remixes, I wouldn't consider it a problem. At best, you're even potentially helping the copyright owners by giving fanfare to one of their properties, increasing the chance that a viewer/listener may check it out who otherwise wouldn't have. IP owners still have the right to claim infringement outside of fair use, but many don't bother because of a combination of effort and bad PR.

When you make money off of it, that's a different story, but is still super common. As an example: There's a plethora of Etsy artists who sell stuff that is slathered with 3rd party IP with no end in sight. So what's the deal there? The DMCA specifies that only the original copyright holder can submit an application to remove their copyrighted material, which makes it an endless task of swatting at flies while also potentially suffering some bad PR in the process. So, while the occasional sellers get hit with a cease & desist, it rarely goes beyond that.

 

[BloomingLate]

On 5/4/2019 at 3:57 AM, thebitterroost said:

This really is the symptom of the universe in the digital era with regard to just about any artistic medium. Since you are not selling your remixes, I wouldn't consider it a problem. At best, you're even potentially helping the copyright owners by giving fanfare to one of their properties, increasing the chance that a viewer/listener may check it out who otherwise wouldn't have. IP owners still have the right to claim infringement outside of fair use, but many don't bother because of a combination of effort and bad PR.

When you make money off of it, that's a different story, but is still super common. As an example: There's a plethora of Etsy artists who sell stuff that is slathered with 3rd party IP with no end in sight. So what's the deal there? The DMCA specifies that only the original copyright holder can submit an application to remove their copyrighted material, which makes it an endless task of swatting at flies while also potentially suffering some bad PR in the process. So, while the occasional sellers get hit with a cease & desist, it rarely goes beyond that.

 

I understand. So in my mind it kind of comes down to it being a gamble. You know you are violating the letter of the law, but given the odds of getting caught, you take the chance and go ahead anyway. Not selling remixes makes it a safer gamble.

In a sense there is a clash of values when it comes to copyright laws and I guess that's the reason something like Fair Use exists in the US.

1. Artists need protection of their creative works so as to avoid theft and loss of income.
2. The public desires to use and adapt artists' works because reasons.

The spirit of the law is to protect artists against abuse of their works, but the letter of the law prohibits the public from taking something to make something else. At least when it comes to music and graphical art.

Reading through my country's copyright laws is still on my to-do list. I have it bookmarked but I haven't had the strength to dig through yet. Maybe I should do it now

Anyway, what I hear most people saying is: "It will be alright to remix game music, its a safe gamble". I can see the point, but would still find it hard to shake that feeling of knowingly "transgressing" the law. Need to think about this some more.

 

[thebitterroost]

One almost surefire way to avoid this guilty feeling you're having would be to reach out to the composer(s) directly (not the game company). There's no guarantee you'll get a response, but if they think it's fine, I'd think that would be pretty authoritative.

And yeah, it is a game of weighing risk. But on the bright side, the most likely consequence is just to be told to stop, and these things have a pretty large track record! Starting with sites like VGmix and Dwelling of Duels, people on the internet have been sharing covers and remixes of game music for 15+ years. I've personally yet to hear about anyone getting hit with a C&D, much less actually getting sued for damages. Another final step could be to submit your covers through a publisher like Distrokid, which will direct any royalties made by your cover to the owners (I included a screen grab from that section of their submission page).

Actual fan-made games, on the other hand, haven't been as lucky. Though, again, even notable ones like Chrono Trigger Crimson Echoes and Another Metroid 2 Remake have only ever been slapped with C&D letters. So even the ever-protective Nintendo seems to be hesitant to actually pursue pressing charges.

[BloomingLate]

20 hours ago, thebitterroost said:

One almost surefire way to avoid this guilty feeling you're having would be to reach out to the composer(s) directly (not the game company). There's no guarantee you'll get a response, but if they think it's fine, I'd think that would be pretty authoritative.

Yes, that's what I was thinking. I would feel best knowing the original composer at least approves.

20 hours ago, thebitterroost said:

And yeah, it is a game of weighing risk. But on the bright side, the most likely consequence is just to be told to stop, and these things have a pretty large track record! Starting with sites like VGmix and Dwelling of Duels, people on the internet have been sharing covers and remixes of game music for 15+ years. I've personally yet to hear about anyone getting hit with a C&D, much less actually getting sued for damages

That is reassuring. Maybe I'm just being too sensitive about the issue.

Also good to know there are options when you do want to do covers and pay your debt (so to speak) via royalties.

[Seth Skoda]

You know, OCR has been around for 20 years doing VGM rearrangement. If we haven't been sued into oblivion by now, you uploading stuff on your own should be fine.

Also, if you feel uncomfortable with violating SoundCloud's TOS by uploading VGM remixes, try Newgrounds. Their Audio Portal welcomes such content and doesn't recompress your audio. Even the owner of the site placed one of my VGM remixes on the front page of the site!

A few somewhat popular artists (such as The Fat Rat and Panda Eyes) are there.

Edited October 14, 2019 by Seth Skoda
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