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If I were to buy, say this song: http://www.youtube.com/watch?v=3fumBcKC6RE, strip/find/get the instrumental, and use that instrumental in a game I'm making, as a theme, say for a recurring boss fight, and then sell this game, would this be illegal?

This is hypothetically speaking.

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Note that "illegal" can mean a lot of things; there's violating someone's copyright, which means they can sue you, and there's breaking criminal laws, which means you can be fined or go to jail. Copyright legislation is so messed-up that you could be facing both. –  Gregory Avery-Weir Jun 24 '11 at 20:52
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8 Answers 8

I am not a lawyer and this is not considered legal advice.

Yes it would be illegal. You have to contact the owner of the song, and work out licensing details. It is likely to be very expensive.

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An artist at a concert performing someone else's song (in industry terms, a cover) is required to pay licensing fees (royalties) for doing so. Live bands in a bar are also legally obligated to pay royalties for performing covers. Isn't it nice to be owned by the music industry? If you want to control your own life, become informed and politically active. –  Huperniketes Jun 25 '11 at 11:10
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"Live bands in a bar are also legally obligated to pay royalties for performing covers" This is not true in the US. –  user744 Jun 25 '11 at 17:20
    
@Joe, facts are more credible than opinion: boylanbrown.com/products/… musicianwages.com/the-working-musician/… –  Huperniketes Jun 26 '11 at 3:49
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@Huperniketes: Those links contain accurate information about how the venue pays for a blanket public performance license that also includes e.g. jukeboxes. Your statement is incorrect. Live bands in bars do not pay royalties. Thank you for reinforcing why this site should not attempt to answer legal questions. –  user744 Jun 26 '11 at 9:04
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@Joe, yes, venues where public performances are often held normally dole out the license fees. However, if the venue doesn't (such as parks, arenas, etc), the musicians representatives (ie, ASCAP, BMI) will pursue fees from the performers. The point is, even performing the song in public either as a cover or the recording, requires fees to be collected for the rights' owners. –  Huperniketes Jun 27 '11 at 11:17
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Just to add to some of the existing answers. As many have already pointed out, using a copyrighted song without securing a proper sync license would be considered a copyright infringement and can get you into trouble.

Getting sync license for a popular song can be pretty pricey or even impossible (unlike mechanical licenses, sync licenses are not compulsory and you are at the mercy of the copyright owner).

If you can't get the sync license for the song you want, few other options are:

  1. Hire a musician to re-create the instrumental version and secure the synchronization license with the song publisher.
  2. Hire a musician to make a "sound-alike" track. That is, something that sounds close enough without infringing the copyright.
  3. Look for similar royalty-free or creative commons music. Check out this directory for many links to royalty-free marketplaces and free music: http://www.safemusiclist.com

Disclaimer: I am musician, not a lawyer. If in doubt, consult an attorney.

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I seriously doubt an attempt to re-create the instrumental would be anything other than a sound-alike (it's very hard to mimic the original instrumentation exactly.. and why would you want to?). Sound-alikes happen all the time, and occassionally you get a suit between big name bands‌​, for successful songs, but if you think Lil' Wayne's gonna go after your dough for creating a sound-alike beat, and using it in your game, I don't think so. –  bobobobo Dec 13 '12 at 23:28
    
Thanks for the comment. Allow me to clarify some of my points. Re-creating an existing instrumental means copying the music note-to-note. While the 100% likeness is indeed hard to achieve, depending on the skills of the producer, it may sound very very close (that is, I can't copy a 40 piece orchestra exactly but I can make a convincing imitation). Sound-alikes imitate the style and the sound of an existing track without copying the original music / melody. Cheers! –  MikS Music Dec 19 '12 at 16:32
    
Mechanical Licence –  user25712 Jul 21 '13 at 2:12
    
Synchronization Rights –  user25712 Jul 21 '13 at 2:12
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Although I'm not a lawyer, my understanding is: The illegality depends on a number of factors, including, but not limited to, the following:

  • Jurisdiction (e.g., copyright laws aren't enforceable globally because many countries don't recognize intellectual property rights that were not granted within their borders, plus there are also some countries don't even have copyright laws)

  • Permission (when using someone else's copyrighted material, you must first obtain their permission if you don't want to open yourself up to potential litigation {getting sued})

  • Court judgement (a judgement must be provided by a court to determine if a violation of someone's intellectual property rights occurred, after which point court-sanctioned penalties may be applied)

In essence, the owner of the intellectual property has to take steps to protect their rights. If apparent violations are permitted, but no attempts are ever made to stop these violations, then others may [reasonably] conclude that these are not really violations (e.g., they were used with permission that was granted privately, which is normally how these things are handled).

So, the answer is: Maybe -- it might be illegal in that it could be a violation of intellectual property laws, and you'd need to ask someone qualified with the relevant legal expertise (such as a lawyer), on a case-by-case basis, if you were unable to get an answer from the copyright holder.

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People who focus on jurisdiction tend to forget that it's a global market nowadays. While it may not be illegal in your jurisdiction to distribute any work that violates someone else's copyright(s), or you can get away with it where you're at, if you wish to get wider distribution in a large, developed nation that upholds international IP laws you will have to deal with lawyers. Courts have the authority to prevent infringing products from entering their respective countries. Remedies sometimes involves paying a lot in back-royalties. It's just easier to pick another, royalty-free, tune. –  Huperniketes Jun 25 '11 at 11:19
    
@Huperniketes: Good point (+1), but with regard to back-royalties, this depends on whether the government enacts laws retroactively (they usually don't because of the potential for creating too much hardship for citizens who were previously NOT violating that country's laws). –  Randolf Richardson Jun 26 '11 at 2:54
    
Back-royalties aren't just penalties by courts for copyright infringement. They're also used by music labels and publishers with large accounting departments that track discs distributed (not necessarily sold), manufacturing costs, marketing, promotion, etc. to reduce the amount they pay to the recording artists. They track and create their own leverage. If you've infringed on any of their properties and later want to license it (or another song in their catalog), you will pay back royalties. –  Huperniketes Jun 26 '11 at 3:28
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@Huperniketes: In some jurisdictions, that's true, but there are countries whose legal systems don't recognize copyrights outside their borders that are a point of great frustration for those publishers (and especially the RIAA). If they were successful in getting such a country to change their laws, I believe it's unlikely that those laws would have a retroactive effect (it wouldn't really matter anyway because the new laws probably wouldn't stop a lot of the infringement, and the copyright holders would likely find it much easier to win cases over new violations). –  Randolf Richardson Jun 26 '11 at 6:42
    
@Randolf, my point is they don't need to seek redress in a courtroom. They can withhold licensing for other valuable content. –  Huperniketes Jun 26 '11 at 6:53
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Yep, you cannot use any sound without expressed permission from the rightful creator the content. This basically applies to the vast majority of the content you find on the internet.

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If by "expressed permission" you mean that permission must be indicated (e.g., through credits), then this is not correct -- the contract between you and the copyright holder may or may not require you to provide attribution. –  Randolf Richardson Jun 24 '11 at 20:59
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@Randolf He probably means "express permission". –  Matthew Read Jun 25 '11 at 0:10
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I also am not a lawyer, but the term is "express permission" so if you go researching that's what you'll need to search on. The common use is something like this: "It means that permission was clearly given, that in lieu of permission there is no permission at all."

In the not a lawyer vein, copyright is not something that must be protected (like trademark) but it is something that can be enforced.

Think of this the other way around, would it be right if the guys who wrote and performed that song started giving away your game for free to anyone who liked their music? Probably not.

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You should look for some 'open-source' music and/or sounds. Most of them require you to get a license from the author and pay them in some way, but there are some that you might be able to use for just a mention in the credits.

Either way, those musicians would probably be a lot easier to talk to and make a reasonable arrangement with than most mainstream music authors.

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Might I suggest looking into free alternatives.

There is plenty of Creative Commons licensed content. You can find ones that are licensed without the NC (No Commercial Use) clause. For example CC-BY just requires credit to be given. I'm not sure if the SA, Share Alike license is usable with a commercial game (it might require the game to be under the same license which basically would stop it being commercial, or maybe the license only applies to the song and any changes you make to that song).

Also there are public domain songs available. Most of them will be really outdated (ie older that 75 years), or educational type stuff. They could be used for certain styles of games. Check out: http://www.pdinfo.com/

Archive.org should have stuff for both CC and PD (although I can't get the search to return results for any decent queries related to licensed music).

I have also noticed that indie gamedevs have licensed content from some well known (well for the genre) ambient/trance music producers. Jon Hopkins was used in Vessel and Capsized used music from Solar Fields (They did the Mirror's Edge theme too). Might be worth looking into how the indie devs go about that, maybe a producers have a indie game friendly licensing system.

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The simple fact is that every source of music you use for your game has copyright on it, and believe me, you can get lots of problems with those companies. Especially companies like Universal or VEVO can really get you into trouble.

As said above you can use open-source music and/or soundeffects. Maybe it's a nice thing to buy FruityLoops 9, you can create techno music, and even other cool game music with it: it's not easy but it's worth a try.

If you really want this music you can ask the producers politely for permission, but then I think you should really buy a license...

For the last, but not least: I recommend you to not use music from commericials or anything simular to that. The player is thinking of that "maybe sucking commercial" when he/she plays the game.

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