Copyright Question Regarding Remixs

[James Grist]

Hi, I want to use a song that is a remix of another song. Do I have to get permission from the remixer and the original author?

 

- the original is a pop song

- the remix is a tracker tune made purely on a computer. It doesn't contain any actual samples from the orignal.

- the melody, chords, and beat are similar or very similar, but still distinct.

- the original has lyrics, the remix doesn't.

 

- the use of remix would be as background music to a computer game. This is a distinctly different use from what the original music was made for.

- the computer game is a small scale commericial release

 

If '3 chord blues' songs where the standard to judge copyright by, then I'd be ok. But I don't know, am I ok to get permission from just the remix author?

[john]

If you plan to remix the remix you will need:

 

permission from the original copyright owner, usually the publisher or songwriter

 as a minimum.

 

If YOU use samples from the original recording you will need permission from the recording/mechanical copyright owner, usually the record label or artist

 

If you plan to use elements of the remix arrangement you will need permission for that, usually from the publisher.

 

If you plan to use samples of the remix recording you will need permission from the recording copyright owner, usually the record label

 

if the remixer is unsigned in either capacity you will need permission from the remixer for both using their arrangement and for using samples.

[john]

Actually, it is just possible you won't have to contact the original artist/writer. It depends wholly on the contract the remixer had and the permissions they were granted.

 

In other words, contact the remixer and ask if they had permission to "grant permissions" to authors of further "derivative works".

 

I should also state, I am not a lawyer.

[James Grist]

he was just a bedroom tracker who did a remix for fun, he didnt get any permissions and released it on the internet amongst the tracker community non commerically. Did Oasis have to get permission from cokecola when they released shakermaker? A song they admit was influenced by and borrowed from the 1971 cokecola song.

[john]

he was just a bedroom tracker who did a remix for fun, he didnt get any permissions and released it on the internet amongst the tracker community non commerically. Did Oasis have to get permission from cokecola when they released shakermaker? A song they admit was influenced by and borrowed from the 1971 cokecola song.

 

A little defensive there. I'm just trying to help. Sounds like you have already decided and I have given you the answer you didn't want to hear. lol

 

There is what you should do, and what you could do.

 

There is a difference between "influenced by" and "using bits from" or "directly lifting". I don't know about shakermaker in particular, or any deals done behind the scenes, I don't know if they got permission or not, or settled it in court later. Do you know? If it was that obvious I am sure Coca Cola will have been paid at some point.

 

Pop music is littered with songs where artists didn't get permission but instead went ahead and released a song. And then got sued.And lost.

 

As a non-commercial release, could you get away with doing a cover? Possibly, but you better be absolutely sure there are no commercial elements (even YouTube advertising, google asense etc.) and that you are prepared to be sued whether it is a commercial release or not. While many labels and publishers will look leniently on non-commercial covers, not all will. Pretty well none will look favourably on a strongly similar song presenting itself as an original, that is considered plagiarism and generally slammed, commercial or not.

 

From the level of detail you know about the remix tracker's permissions I am guessing you have asked him?

 

Just because this tracker hasn't been sued doesn't mean he won't be.

 

The point is, why would you not ask permission? It's easy enough to do.

 

If you are doing a commercial release it is better to be completely up front.

 

If you are doing a non-commercial release most are quite accommodating.

 

- the original is a pop song (from a permissions perspective it is completely irrelevent)

- the remix is a tracker tune made purely on a computer. It doesn't contain any actual samples from the orignal. (are you?)

- the melody, chords, and beat are similar or very similar, but still distinct. (How distinct? There is a measureable formula, plus it comes down to a jury. Additionally chords and beat don't count from a song copyright perspective, though they can count from an arrangement perspective. From a song perspective, the melody and lyrics are the important part.)

- the original has lyrics, the remix doesn't. (does yours, are they the same/similar?)

 

- the use of remix would be as background music to a computer game. This is a distinctly different use from what the original music was made for. (doesn't matter from a permission perspective)

- the computer game is a small scale commericial release (Ahhhhhh! The scale doesn't matter. If the publisher finds out and consider it to be very similar... they could sue you. So much so that it takes your game off the shelves, and they could claw back moneys, whether you made a profit or not. beacause any publisher will want a share of a commercial release of ANY kind if THEY consider YOUR song is similar.)

 

Going by the last bit, you better be very sure that your song is measurably different. In a legal sense. Additionally, if I were you I would be wanting written permission from the tracker if what you do is borrowing in any way from his work. Otherwise he could be flat broke and aware that your game has become very successful, or your software company has, even years later, and then he could think.... why not and engage a lawyer. It has happened many times in the pop industry and in the gaming and other industries. Same goes for publishers, labels and artists. ie they can decide at any point if they discover it and deem it to be similar enough.... hence me saying you better be very sure of how similar it is legally.

 

Even tough you haven't named the track, I doubt it would be too hard for them to prove that you have had exposure to the track or remix.

 

I am not trying to be a pain in the ass, or rain on your parade. I am trying to help. You asked a question and I answered with what I consider to be the correct answer. I am not a lawyer. My answer is not definitive.

 

If you are serious, consult an entertainments lawyer.

[James Grist]

i got permission from the remix author cos he's easy going bedroom developer like me. It's the permission from the big record company of the original that's a real pain to obtain. They have a front line of accountants and lawyers that are paid to make money, they won't give anything away for free and will have a lot of paper work for me. It'll take a lot of money just to get there attention.

[James Grist]

As a matter of fact, Noel Gallagher did not have permission from the writers of I'd Like To Teach The World To Sing, and the copyright infringement cost him half a million dollars (Australian) - plus all if his own attorney fees and costs for the litigation.

 

Jeeeeezus thats realy shocking. The worst case of abuse of copyright laws I know of. Shakermaker borrows only 8 notes and 5 words from the coke song. They are the most recognisable part of the jingle, but its still such a small part.

I don't drink coke either. This is another reason not to.

Edited January 19, 2014 by James Grist

[James Grist]

thanks john, good info there.

Regarding just the remix music copyright, its distrubuted under a broad licence, that is short and sweet to read.

http://modarchive.org/index.php?terms-upload

 

although explicit permisson to use the music commericially in games is not given, some people have said ( from experience ) that it actually does cover use in commericial games, because you are distributing the music as not the main feature but as a component of a different form of entertainment than pure music.

Sounds a bit fluffy but they seemed sure of themselves and that they knew from experience.

 

Have you any experience with such licences?

 

thanks

Edited January 19, 2014 by James Grist

[john]

You can see why I was saying you should be careful. It isn't surprising. It is typical of an after the fact award, usually because a court case can, and often does, include damages.

 

I wonder how much Oasis paid in damages overall? This was hardly an isolated case of, um borrowing lol

 

As far as the publisher goes, if using their melody was so crucial, they believe it is worth paying for. Rightly or wrongly. If not, I am sure they would argue that you could have written your own melody for nothing.

 

While it is good that you have permission of the remixer, it still comes down to how similar it is to the original. If your song ONLY borrows from the remixer's melodies and arrangement, you may well get away with it as your song has borrowed from the original compositions of the remixer.

 

In terms of the modarchive.org license, yep, kinda similar to what we have here regarding copyright. We have both a legal language and plain language explanation in ours, though it needs updated. Without it we couldn't have uploads, or in fact text posts as to show someone else your words, legally we would need your permission...

 

Specifically on their license, I am afraid it is wishful thinking on behalf of games developers wanting free music...

 

The first, general point I would make is the license to redistribute mentions that the song must remain unmodified and be unbundled. As soon as you place it inside a game it is "bundled". Additionally, the FAQ explicitly states, reguarding the right to distribute / redistribute "This does not cover inclusion in a packed/bundled application or game." This just clarifies what the upload license already spells out. It's a pity the games developers didn't read the FAQs.

 

Worthy of note is that it states to be fair to the composers, they should be contacted directly regarding permissions.

 

However.... I would argue that the remixer didn't have permission, as the song he uploaded was not wholly original. It incorporated work that he did not have permission to use, which therefor he broke the modarchive forum rules in doing so. ie either the work was misrepresented as being wholly original or he was claiming to have permission of the copyright holder to redistribute the work. There really isn't a middle ground. So any permissions he granted via that license would not apply.

 

Is what you are wanting to use directly taken (melody, words) from the original song, or a direct lift from the original recording, or wholly taken from original composition elements of the remix or is it a mix? If the latter, then it may as well be the original song/recording.

[James Grist]

I want and have informally got copyright for the unmodifed remix.

 

yeah i thought those people asserting the mod archive licence meant free music for commerical games was wrong. but worth checking.

 

I've been contacting music authors about licencing music for my game. they express a bit of plesant surprise, as if many indie and amatuer developers just use their music without asking.

[john]

It's true. Many don't bother asking. In an industry that has been hit immensely hard by piracy and BS misinfo that covers the web about the music industry, from the cost of making a cd to the justification being a strike at the big 4 labels, making money is important like it never was before. The industry is a shadow of it's former self. The good news for you is that in being pleasantly surprised they will be pleased to work with you rather than against you. Goodwill can go a long way.

[MikeRobinson]

Since you intend to make commercial use of the remix, I would flatly tell you to obtain ... and pay for ... the written legal opinion of a qualified lawyer.  Nothing else will do.

 

Following that lawyer's explicit instructions exactly as he or she gave them to you, you will need to document your "due diligence" in searching for any potential suggestion of infringement; every letter that you wrote and when you wrote it; every reply that you obtained.  And then, from that lawyer, his or her statement that in their expert opinion, the necessary legal requirements have been correctly identified and met.

 

Fast-forward to the point when your commercial product is wildly successful    ... and here come the opposing lawyers, with their claim of copyright infringement and their prayer to the Honorable Court that the Court should grant an injunction stopping the distribution of your product and a hefty penalty.  And let's say for the sake of argument that their assertions are totally false.  But you are the defendant, and they can nevertheless shut you down or back-room strong-arm you into paying them lots of money to go away.  Did you mind your P's and Q's?!  Can you prove to His Honor, in complete detail, exactly what you did?  Can you prove to His Honor that, if infringement did occur, that it was "innocent?"  And so on.  'Cuz if you can't, His Honor just might grant a "temporary" injunction while the Court takes its own sweet time to sort things out ... by which time your venture is bankrupt.

[john]

Good points all.

[James Grist]

thanks again for the well written and informative replies. In light of wants been said, I've decided to not use the remix. Shame, cos it was a nice tune. Dealing with 2 copyright holders over 1 tune just plain doubles the copyright costs and paperwork.

[MikeRobinson]

What you can very often do is to write a "similar."  It's not the same tune – it is your original creation – but it might be only a snippet that you specifically intend to use as a source for remixing, not a complete tune (yet).  It sounds acceptably like in the flavor of the source that you had in mind, insofar as its musical genre, style, mixing-qualities, instrumentation and so forth, so it fits into the slot that you have.  But, it's provably your original work.  (And now you are free to "tweak" this fragment to suit the greater-song into which you plan to insert it, since you now own both of them.)

 

And your attorney, who reviewed the entire work before you started trying to make commercial use of it, documented in writing that he had reviewed it and that in his or her professional opinion there was no infringement.  You have that letter in the lock-box at the bank . . . 

 

Folks I know who have done that simply included the song-fragment as one of the entries in their copyright-registration, thus explicitly securing their claim not only to the assembled product but to the components that they used to make it ... and, in so doing, legally documenting what the actual source-used is, lest anyone should accuse otherwise.  (In the US, at least, this does not add to the cost.)  If at a later time they decide to develop the fragment further, they simply refer back to the previous registration(s) that included some part of it, thereby tying the whole legal thing together.  Perhaps you could do that, and thus keep your project moving ahead.

Edited February 13, 2014 by MikeRobinson

[James Grist]

you might as well listen to the tracks yourself to better judge.

 

The original, ( tacky pop tune )

 

The remix, improves on the original, makes the transition to decent tune

http://modarchive.org/data/downloads.php?moduleid=51853#ntigroov.xm

( download and play with VLC )