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I am working on a commercial game and I'd like to use a certain song during the credit, because it would be very fitting for my particular game.

I know using music that other people made in your game can be illegal, but this is something pretty minor, and I was wondering how legal it is to use one of his songs, as long as I credit him (I understand most of you aren't lawyers but surely you can offer some examples or give a solid advice)

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Regarding your last sentence: no, we are not lawyers, and even if someone provided supposed evidence saying you could it's entirely possible that the "evidence" is bogus and none of us would have the legal chops to understand that or point it out. For legal questions ask a lawyer not the Internet. Though in this case the "No, of course not" advice you're getting is pretty sound (the safe answer to any legal question seeking permission is always "no," and any "yes" should be verified by a professional). –  Sean Middleditch May 25 '13 at 22:19
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@Sean: this applies to everything you read on the internet, hell, it applies to everything you hear from anyone in any place. I don't know why if the law is involved people feel this urge to point out the obvious: that what some strangers tell you on the internet may not be accurate. Especially even after he stated that he is already aware of this!! –  Andreas Bonini May 26 '13 at 0:19
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@AndreasBonini: getting the wrong answer to most questions won't get you sued. There are topics you can risk getting bad advice on but legality isn't one of them. –  Sean Middleditch May 26 '13 at 0:51
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@Sean: being sued is not a certainty, and being sued is not automatically worse than everything else. Getting bad programming advice can get you fired, which can potentially be much worse than being sued. Getting bad relationship advice can ruin your relationship, which again can be worse than being sued. And so on. Add to this that he didn't get bad advice, and that he explicitly stated he is aware that we are not lawyers, and the real bad advice is advising him to hire a lawyer for such trivial a question, which only results in wasting money –  Andreas Bonini May 26 '13 at 0:57
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@SeanMiddleditch Why are you so convinced none of "us" are lawyers? Just personal experience with the users you've encountered on the site, or a guess? –  Attackfarm May 29 '13 at 6:38

6 Answers 6

No. You can't distribute anything you don't have permission for. Crediting or not makes no difference.

Unless the song was distributed under a license which explicitly permits redistributing it (such as CC-By) you'll need to get permission from the copyright holder, else it will be copyright infringement and the copyright holder can sue you for it.

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Can you legally obtain permission for such work? –  Bugster May 25 '13 at 13:17
    
@Bugster updated the answer –  API-Beast May 25 '13 at 13:49
    
@bugster look up fair use. As long as you're not going for profit that distinction of copy write law might cover you. –  ZeroPhase May 26 '13 at 6:31
    
@Bugster You'll need to contact the artist and/or original game maker to determine the status of the copyright. The artist might have signed over exclusive rights, or even full ownership rights, to the game makers, in which case the artist would be unable to grant you permission. –  BrianDHall May 26 '13 at 6:33
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@ZeroPhase: A common misunderstanding of "fair use" is that not-for-profit or personal-only use somehow grants a right to copy. It does not. Fair use includes use of snippets for journalism, reviews. It would not include use of media to enhance a game, no matter whether the game was free or commercial. –  Neil Slater May 26 '13 at 8:53

Let's rephrase this: would it be OK for the musician to take your game and sell it along with his song as long as he mentioned you somewhere in the "About" page? Without even asking you? I did not think so.

Since you are creating copyrighted works yourself now, I suggest you spend an hour browsing wiki on the subject of Copyright and then Trademarks to get a quick background in what they actually are and how they work. Bonus points for then realizing that you should search on Trade Secret to see how that fits in.

Your masters thesis on this subject should be to finally look up Licensing and what all those licensing agreements are that you never read because they're in awfully tiny text.

All of these subjects are there to protect YOU. With proper copyright, trademark if needed, and choice of license not even EA/ATVI could come and steal your stuff.

Now to answer the question:

You must license that song for inclusion in your game, doesn't matter whether it's commercial or not. Find out who published that song, write the publisher a nice letter to ask about using that piece of music. If you can find an address for the musician write him a personal letter asking about the song. Maybe they're both cool and love independent game devs, maybe not, but this is the only way to find out.

There is no "minor" when it comes to legal or illegal use, you get sued the same either way.

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as @mr.Beast said no you cannot

If you do want to distribute a certain song that isn't distributed under a license that allows it, you need to contact the copyright holders for permission.

you'll need to expect to pay for that permission though and expect it to come with several conditions

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Word to the wise. This point will be very important to the rights owners of the music; you state, "it would be very fitting for my particular game", while their question will be "would your particular game be at all fitting for our music?" It is up to the rights owners of the music to answer that question, not me, not you and not a bunch of online folks. Prepare a request to the music rights owners with this in mind, and respectfully promote your use of their song - explain your reasoning as to specifically how the music fits, do not assume it will necessarily be an honor to them.

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Can I use copyrighted material if I give credit?

Under most licenses, absolutely not. There are licenses that allow use which include creative commons licenses, as Mr Beast stated in his answer.

Can I use copyrighted material?

If you obtain a license to do so. This can be done by contacting the copyright owner, or abiding by the license that currently exists for the work, such as the case of a CC license.

You can also use such material if it falls under fair use. In your case, it probably does not, but doing research on it might provide more insight into fair use precedent. However, if you decide to pursue this route, know that this is decided on a case-by-case basis. In court. Contacting the copyright owner is much simpler.

Are there other options?

Yes, actually. As IMX answered, despite the downvotes on his/her answer, cover versions are not covered by copyright law in the same manner. You don't need owner permission, but you will need to pay royalties to the owner through a mechanical license.

Please note that, with the exclusion of fair use, all the answers involve a license in some manner. Mechanical licenses, contacting owners to license, utilizing the current license. There is no answer (beyond fair use, which is very limited and probably not useful in your situation) in which you can use a work without a license.

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Getting a legal license might cost you something, but have you ever thought about making a rough cover-version of that song?

I think it's ok when you do it that way.

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My guess is that if he could make a rough cover, he wouldn't need the audio in the first place =) –  Patrick Hughes May 25 '13 at 17:22
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Making a cover version doesn't mean you're free and clear, the lyrics and notes are under copyright as well. –  Andy May 25 '13 at 19:33
    
No, covers are no less a violation of copyright; covers, rough are not, violate the song writer's rights over derivative works and reproduction, and possibly licensed exclusive rights as well. –  BrianDHall May 26 '13 at 6:29
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Yes, covers are less of a violation of copyright, actually. Cover songs are not a violation of copy-right as long as standard royalties are paid. –  Attackfarm May 29 '13 at 6:43
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