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If I found a video with a remake/remix/version of a commercial song (for example, the theme of Super Mario Bros) with a CC BY licence, I can take this video for a commercial purpose like the background music of my game?

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It depends on the music License not the Video license you found. If the music is licensed under Creative Commons then you are fine. The video might have violated the music license terms. – concept3d Apr 17 '14 at 11:36
So, I can't take this remix because the original theme (in this case Super Mario theme) isn't under Creative Common license (I suppose), right? – Xose Apr 17 '14 at 11:49
Yes I think you can't. – concept3d Apr 17 '14 at 11:52
We are now lawyers. Don't ask us for legal advice. As a rule of the thumb though: If you need to ask, the question is probably no, no you can't use. – Jari Komppa Apr 17 '14 at 13:31
@JariKomppa How do you know that there aren't any lawyers among the game developers on this site? – sm4 Apr 17 '14 at 14:47
up vote 10 down vote accepted

Insert I-am-not-a-lawyer disclaimer here

The notes of a song are already eligible for copyright. Taking the notes of a song and interpreting them differently creates a derivate work. This work must not be published when the copyright holder of the original song didn't give their permission.

When the composition of the song is not under a free license, the one who made a remix licensed as CC-BY likely already committed a copyright violation. The CC-BY license in this case is irrelevant, because they didn't had the right to publish the work under any license in the first place. When you reuse their work, you are also committing a copyright violation. Not against them but against the original IP holder (in this case Nintendo).

Such copyright trojan horses can not just slumber in the composition. Other parts of the work can also violate other peoples copyrights. Individual instrument or voice samples, for example.

What do we learn from that? Never trust allegedly free assets. When you want to publish a game, you should get a written contract from everyone who made your assets stating that they have the full copyright on the assets and that they will reimburse you for any 3rd party claims when it turns out that they have not. They will likely not be willing to give you that warranty for free, so you will have to pay them.

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+1 for "never trust free assets." – Josh Petrie Apr 17 '14 at 14:55
The rules for songs are a bit different from other copyright works. For example, you can usually obtain licenses for compositions without negotiating directly with the original author. You go through a clearinghouse instead. (This only gives you certain specific rights, however. To get different or additional rights, you will need a license directly from the songwriter.) – Bradd Szonye Apr 18 '14 at 1:59
I talked with a law student and she explained me that in my country (Spain) if a song have only one different note, is considered a new song, so I don't violate the copyright. But I don't be very sure... – Xose Apr 22 '14 at 8:49
@Xose When you want specifics, you should rather consult a real lawyer who specializers in copyright law and not just a law student. Also not that in todays world you are likely going to distribute your game world-wide via the internet, so you need to consider copyright laws all around the world and not just those specific to the jurisdiction you work in. – Philipp Apr 22 '14 at 8:56
Yes, I know, I only commented – Xose Apr 22 '14 at 9:05

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