Avoiding a chirpy 8-bit lawsuit

June 26, 2011 2:28 PM

I'm covering a favourite album in chiptune style, as a for-the-heck-of-it non-commercial project. Am I risking a world of copyright hurt?

I'm a Canadian who's recently taken a fancy to chiptunes, and have been working with some tracker software to teach myself that arcane art and science. As a project, I decided to undertake the chiptuning of a favourite (American, indie-famous) album. I'm doing it all by ear; some renditions are faithful, while others are more heavily reimagined.

This is a both a learning and creative project. Evidently, there's no commercial intent, but I'd want to share the results. I thought, for instance, maybe the folks at MeFi Music - where covers roam the landscape with impunity - might appreciate it.

However, the recent unpleasantness around Kind of Bloop has given me pause. Recognizing that you are not my lawyers, what are the fair use considerations here? I'm interested in hearing both the American and Canadian perspectives on this.

(A first consideration to start with: The copyright laws here are antiquated, fuzzy, and in flux. American "fair use" equates to "fair dealing" here, and it's mostly established in Supreme Court case law, not in statute. In general, it's weaker than American fair use. However, now that Canada has a stable government, a new copyright act will be on the way soon. While the last iteration was hopped up on DRM no-goodness, it did provide legal protection for "non-commercial user-generated content." Hopefully, its successor will, too.)

posted by bicyclefish to Law & Government (4 answers total)

In the US, the steps you need to take to license cover songs are covered here. There's a similar process in Canada, via CMRRA. If I were you, I'd contact CMRRA, find out the royalties needed to obtain a digital-distribution license for the songs you want to cover, and then decide whether or not it's worth it. Chances are it'll be something like $50 per song, in which case you may as well just license everything and dispense with the fair-use worries. Even if not, I doubt anyone will sue you as long as you don't charge; there must be tens of thousands of totally unlicensed covers on youtube, for instance.

The trouble with Kind of Bloop also suggests that you should create your own cover art which is *not* based on or inspired by the original art, preferably in an empty white room so no one can claim you were looking at anything at the time...
posted by vorfeed at 2:56 PM on June 26, 2011

Kind of Bloop had no problems with the music part, because they got the proper licensing from all the proper people.

Previously on this topic: legality of distributing free cover songs.
posted by Sticherbeast at 3:13 PM on June 26, 2011

I don't really understand what it means to chiptune a song; is it similar to a cover song? But the American fair use exception is notoriously poorly defined and ambiguous. That plus the costs of defending an infringement action makes copyright a really, really easy place to get screwed. Lack of commerciality is a factor, but isn't typically determinative, FWIW.
posted by J. Wilson at 8:15 PM on June 26, 2011

"Chiptunes" are cover versions using C64 style sounds I believe and hence Fair Use has nothing to do with this issue.

that linked MF post has a LOT of mis-information. Please completely ignore everything that the first replier Klangklangston says. its all wrong.

Legally in the USA, UK, Australia and many countries with similar Copyright law the just act of "recording" a version of someone else's song requires that you pay a standard royalty fee, even if its just a Demo version. If you are "releasing" the music then the fee is determined as a percentage of the PPD price of the CD/ Album and you pay upfront based on the expected sales no. / or pressings subject to a minimum fee.

I think the minimum fee is somewhere around $US 100 per song.. (but don't quote me)

http://en.wikipedia.org/wiki/Cover_version#U.S._copyright_law

However in practical terms many people post cover versions on the internet of different songs without paying this fee. And there are generally no repercussions.

Presumably the copyright holder would have to sue for failure to pay the Royalty fee but because the fee is so low then the claimable damages would be in the order of a lawyers hourly salary and hence it is not financially beneficial for the copyright owner to chase up random cover versions.
posted by mary8nne at 5:17 AM on June 27, 2011