Fair use of (muted) video material for visual enhancement of own compositions and remixes

[Master Mi]

Yo, girls 'n' dudes from OCReMix.
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I'm working on an instrumental remix of the soundtrack "Superman" made by the band Goldfinger - a track which was also used in the first Tony Hawk's Pro Skater game, which got quite famous with this game and which I still love to hear nowadays.
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My remix is almost done (maybe one or two more weeks).
But I want to get some nice video material to visually enhance this track and bring in some nice iconic memories.
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So, now my question.
Is it possible and fair use, if I use some (completely muted!) video material from the latest trailers of the new Tony Hawk's Pro Skater 1 and 2 remaster?


So, something like this one - but as a muted version and my remix as the audio layer instead:

I would probably cut some trailers into a few pieces and set them together in a way that would fit my remix.


What do you say - is it legal, copyright-conform or fair use?

[Rozovian]

I'm no lawyer. This is uneducated opinion.

btw remixing the song, without licensing it, might not be covered by fair use, depending on... things. If you want to be safe when it comes to all this, get a license. Game music is usually fine to remix (probably not ok to sell the remix), but commercially released music is different.

1. Purpose and character of the use

The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.

Quoth Wikipedia. It's transformative, in that it's not the original audio of neither the trailers nor the original song. And your own cut of the video material. Can't say if that's enough, but I would think so. Educational purpose though? Nope. But it might "advance ... the progress of the arts" though.

2. Nature of the copyrighted work

Fact vs. fiction, ideas vs. expression. This kind of stuff. You're not copying an idea, you're copying the expression itself, the video material, but re-cut. The material is fiction. The material is published. What else might matter?

3. Amount and substantiality

You're presumably using a lot of the material you can find. A trailer itself is not the whole game, but it is a complete video that's been cut, mixed, released.

4. Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work.

In this case, a positive effect, if any, on the trailer. Maybe also on the song.

So as far as I, non-lawyer, can tell: You're probably OK on the first and fourth factor, maybe not on the middle two. All are supposed to be considered.

[Master Mi]

Thanks for the response and the useful information. ))

The soundtrack itself is finally done and I'm really satisfied with the final results - it's pretty fire in the composition and very clean in the mixing I'd say.
And I'm really looking forward to post a Youtube link of the final video version.
Since the remix is quite different from the original and there seem to be also some other obviously unpunished remixes of this song "Superman" out there, the audio part shouldn't be the big problem.

The video stuff I began to start cutting today could be a different thing.
So, I hope they'll accept my own work as well as my non-profit & just-for-fun motive or even see it as a good commercial for the remake of the game.

If it doesn't work (contrary to my hopes), I could still try to ask someone if I can use real gameplay scenes from within the game.
As far as I know, using self-played video game scenes are pretty safe against copyright issues, right?

...

But I have another question which might be a bit more difficult to answer.
Maybe you know the real footage of skaters, their greatest tricks, falls and crashs etc. within the THPS series.

What do you think - are they easy-going with it if I also use some of the original sakter footage or is it rather a pretty unsafe decision like my intuition tries to warn me about this undertaking?

Edited March 22, 2021 by Master Mi

[Master Mi]

Besides, you were kinda right with the audio copyright.

I just uploaded the remix a few hours ago and there was marked a big part of this track 'cause of the copyright stuff.
The remix seems to be still on Youtube and it's nothing severe as they wrote - but they want to monetarize my track (and I don't like that monetarizing feature because of the commercial interruptions).

I raised an objection against that and I hope they'll recognize my own compositional work within the remix, my passionate non-profit motive and my intention to keep my remix free from commercial breaks for all listeners.

I just don't get it how their content ID software can already find original melodies in a remix which is quite different enough from the original to be a different music genre.


If they continue with this, it might be the death of the whole non-profit remixing scene within less than a decade or so.

In the worst case scenario they might even forbid own compositions in the future if there are just 3 notes similar to a composition of another dude.
And the more compositions are written in the world, the bigger the chance will be that several tracks will become more similar to each other.

It's really annoying that individual musical expression and compositional variation of soundtracks might become illegal because of dull money interests.
I mean, music is still art and it should be liberated instead of getting more and more criminalized and prosecuted.
If only the rich people have the rights and the financial possibilities to get their licenses and make music, how poor will this world and the musical landscape be in the future?

Just a few thoughts that brought me a little bit off topic.

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But, contary to my fears, the video cutting of the game trailer material was obviously okay.

And since the Youtube video is still on, I guess I'll post it later (or tomorrow) in the video game remix section - so, everbody can form an opinion about the remix.
 

[Master Mi]

I just wanted to give a final feedback how the things with the content ID claims turned out on Youtube.
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And it was pretty easy-going.
A few days after raising an objecting against the party who wanted to monetarize my content, I got back the full rights for my video.
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As I remember, I gave the following reasons at the raising of my objecting against the content ID claims.
I think I wrote that I had never used any parts of the original soundtrack in my video and that I've recomposed my remix completely with the MIDI editor of my DAW - a remix which also contains lots of new composition elements compared to the original soundtrack.
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The second thing I remember I've written was something like the intention to keep my compositions and remixes far away from any kind of monetarization (because of the really annoying adds/commercials which will come with the monetarization of videos) to support the original creator spirit of Youtube and to keep my content freely available without any restrictions for everybody on Youtube.

And yep, it seemed to work. ))


For everybody who has not listened to my remix and seen the video yet, you can watch it here:
>>>

If you want to compare my remix to the original soundtrack (just for the case you want to get an own impression if the content ID claim was justified or not), you can listen to the original soundtrack here:
>>>

 

Edited April 17, 2023 by Master Mi