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If I were to use an old piece of music from the 40's or so, which is known to be copyrighted, yet, you can find numerous public performances of this piece all over youtube, should there be any cause for worry if I try to use this song in an NES homebrew game and sell said game? I'm considering releasing this planned game for free, but, I'm trying to find out what my options are.

I've been trying to search for information on copyrights but, can't get the answers I'm looking for. What's worse is I'm planning to name the game after the song. I imagine this could potentially get me into trouble.

Contact a copyright lawyer. No one here on nesdev (that I know of (and if I'm wrong, whoever you are, please let us know!)) is an attorney, and this is absolutely a legal thing. A good copyright attorney would likely be able to give you an answer without charging you for their time (many provide the first 15 minutes of service for free). DO NOT rely on things you "read online".

"If I charge into a hornet's nest wearing nothing but my socks, can I avoid bites to my balls?"

...

Well, there is always a chance you'll come out unscathed. But are you willing to face the consequences if you do get bitten?

Some other people* can probably come up with loads more counterexamples of games named after songs (Holy Diver, Bust-a-Move), but I don't know of any unlicensed games named after songs AND containing that song. And counterexamples are no guarantee of anything anyway.




*asterisk for amusement purposes only.

You could always ask the copyright holder instead of fretting about it. They might have you pay something relatively small and sensible (one time fee? 0.1% of your sales revenue?) or they might not even care (which would surprise me, but good things can happen).

Since money making would be involved on your end, that changes the equation for a lot of companies or copyright holders. If your game was a freebie, generally you get yelled at with a DMCA take down, and as long as the offending content goes away, that's the end of it. "Usually" being the operative word. But in your case, you'd need professional legal advice, not anecdotes.

YouTube covers are a legal liability for the uploader. Often they're just a violation of copyright that hasn't been spotted, probably equally as often they are implicitly accepted by the copyright owners (by them assuming ad revenue from the video). Less frequently they will be flagged and taken down. Even less frequently the uploader will be sued.

You don't have any legal right to use music in this way without an appropriate agreement. Some forms of cover song have automatic licensing options (e.g. mechanical royalties), but that tends to be limited to sound recordings, not use in video or video games.

If you know this and your question is how much of a risk you're taking, that's impossible to speculate about. Maybe nothing bad would happen. Maybe you'd get sued for thousands of dollars. It's not easy to predict how often people who are breaking the law will get caught and prosecuted for it.

Honnestly, your money would be better used to pay a music composer than to pay an attorney to investigate if you can use copyrighted music without fearing being bring to court. (the former is much cheaper than the later, too)

Also, copyrithgs normally ends 50 or 70 years after the death of the authors (depending on the countries), so use 70 to be safe. It means if the author died before 1945, it should be in the public domain, and you can use it freely.

In the US it's basically whether something was published before 1923. It will remain this way until 2018, because laws were changed to extend copyright to publish date + 95 years, and it hasn't yet been 95 years since 1923. The US will eventually become author's life + 70 years (works being created now have this term of copyright), I believe, but it will take a long time for the preceding terms to roll off the calendar.

In most other places, though, yeah, it's life + 70 or 50 years.

This may help: Wikipedia's map of copyright length

Which terms matter depends where you want to sell your thing, though.

It's also utterly ridiculous this changes form country to country, if you want to release something internationally. It should either be :

a) The law of the country where the copyright holder lived/died applies
or
b) There's only a law for all countries

To use their song, you'd need to get permission or use a different song. If you use it without permission, it's technically copyright infringement, so the copyright holder can legally tell you to not use their song, but that depends on whether the copyright holder cares to begin with.

So, that's a cold hard fact, I don't think there's any way to dispute that.

The following is just my opinion, I'm not a lawyer, I didn't go to law school, and my only knowledge in this subject comes from a college course I took 3-4 years ago which dealt with how law applies to software and technology, but for the most part, I'm just reading wikipedia.

Fair use is complicated; there are four things that need to be judged, and if one of those things "outweighs" the others, it won't protect you. The biggest problem would be your usage of the entire song in a way that doesn't create something new (i.e., you're just creating "unrelated thing with this song playing in it", which is considered a derivative work, as opposed to parodying the song, reviewing the song, etc). If you were only using a small part of the song in a small part of your game, that's not as balance-upsetting, and you'd have an easier time getting away with it; they'd have to consider other factors like whether this harms or substitutes the market for the song, or whether the inclusion of this song portion is so insignificant that it nullifies the fact that it's a derivative work instead of a transformative work.

Now, as for your title, let's say I wanted to make a train-based game called "The Locomotion". That, by itself, isn't a problem as long as it's not a trademark (and don't worry, trademarks usually aren't granted for really common words or phrases). The problem would be if I wanted to include the song "The Locomotion" by Little Eva; I'd need to get permission first, but only for the song. I could include a song that sounds similar to it, as long as it's plainly a new song. It's not the most kosher thing to do in the world because I'm using the title of a real song while using a ripoff of that song, but it's technically legal.

Finally, freeware doesn't cancel out copyright infringement. Copyright holders may be less likely to care when money isn't involved and the thing isn't getting wildly popular, but it's still infringement and they still have the legal right to tell you to stop using their song. Again, they might not care, but it's still a risk you'd be taking.

What are good tips for 1. finding which music publisher controls copyright in a particular musical work and 2. approaching this publisher for a license? I'd ask on "Music: Practice and Theory" Stack Exchange except that it has explicitly excluded business and legal issues from its scope.

Recorded media is usually accompanied by notes explaining the author and publisher or all included songs.

Sometimes that information has been transcribed at: http://www.discogs.com/
If you can't find it there, you might look for search engines designed for this purpose: http://www.mpa.org/content/copyright-search

I always did wonder if there would be any legal repercussions to, say, using "Unchained Melody" as the ending/credits theme of an NES game. As an homage to a certain breed of multicarts which used an arrangement of said song as their menu music, which plenty of people (myself included) have been exposed to.

Come up with a slightly different version of the song. That way its harder for them to claim copyright.

It didn't work for Pharrell Williams when he wrote "Blurred Lines" for Robin Thicke.

Thanks for the feedback everyone! I've submitted a license request to the current copyright holder. It'll be fun to see what happens. They had fields in the request stating what my budget is etc. Hopefully they don't laugh at it, haha. Guess I just need to hope whomever receives the request is a nice person. Haha.

It's kind of an odd idea I have for a game but in this particular instance it is important to me that it has the exact song and bears the same name. Strange, I know. Welp, all I do now is wait for their response, hehe.