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As part of my game, I thought it would be fun to make a hidden level that pays tribute to Mario Bros (one of the earliest games I ever played). It would be themed in that way with 8-bit graphics and question mark blocks and completing the level would say "Thank you but the princess is in another castle" or such.

For the sound track, I'm thinking of just overlaying the standard mario theme music by playing it on a virtual keyboard using a different instrument/timing or something.

My question is, am I legally safe? I'm not using anyone else's actual music, I'm just playing the same tune in a different way myself. Do I have to get licensing for this?

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Whether it would come under their copyright or not depends an awful lot on what exactly you mean by "playing the same tune in a different way". –  Kylotan Feb 4 '11 at 20:45

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up vote 3 down vote accepted

I am not a lawyer.

Performing or rerecording a piece of music still requires that you get authorization from the creator, and Nintendo is very unlikely to grant that authorization at any price (I hear they turned down Justin Beiber). Fair use doesn't really apply in this case, either.

From an ethical perspective, I don't think you've got much to worry about, and Nintendo's not likely to go after your game unless it's really prominent (i.e. a AAA title). There are games out there that commit far worse appropriation of Mario, and they haven't been shut down.

If you want to be totally safe, compose or have someone compose a theme which is heavily reminiscent of the Mario overworld theme, but is an original composition.

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This. Just commission something in the same style. It's more entertaining if done well since it's a new piece but people recognize the allusion. –  michael.bartnett Feb 4 '11 at 11:20
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I'd like to add, I disagree that he wouldn't have to worry about. A few years ago Nintendo stormed ROM sites making them close down, even if the games they distributed were so old to be commercially worthless. –  Lohoris Feb 4 '11 at 14:35
    
Nintendo has an interest in selling old Nintendo games via Virtual Console, so they've got a reason to shut down ROMs. There are many mario fan games that have been around for years, including before that incident, and I don't recall any being cease-and-desisted. –  Gregory Avery-Weir Feb 4 '11 at 14:40

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