Is there an IP lawyer in the house?

[Terr]

Just a quick question - if I take the "Jaws theme", redo it in MIDI, take a 14-second snippet of it and play it in a computer game I am writing as the shark swims by, am I violating copyright or does it fall under "fair use"?

If it isn't "fair use", I will try to sync license it if the price is reasonable (the game is not going to be a huge blockbuster so they better not charge me much). But wanted to find out first if I should go through the effort...

[Mr Downtown]

Very unlikely to be considered fair use. Your use is not parody, criticism, teaching, news reporting, research nor some other non-profit use. See this summary. (http://www.ivanhoffman.com/fairusemusic.html)

[Terr]

Thank you. I guess I gotta go call the publishers I found who (hopefully) hold the rights to it and see how much they will want.

[AK84]

I am a lawyer. I have a bit of experience in IP. This is not and should not be construed as legal advice. What you are planning to do could be construed as fair use. Or it could be not. Either way it could probably only be determined by rather expensive litigation which I am sure you wish to avoid.

Speak to a lawyer......pronto. I assure you he will be worth the money.

[md2000]

IANAL...

If the shark fin had a happy face painted on it, visible as the shark swims by - you might get away with parody - then maybe not.

The problem is that the two notes, particularly with original instrumentation, are instantly recognizable. Repeated, they form a substantial part of the "song". It's not like you are taking a little bit of "Jaws", you are essentially approriating the entire concept and applying it to your game. If the intent is menace, you are obviously "copying" what the average Joe knows about the whole of Jaws and using it as shorthand. If the appearance of the shark fin is wildly inapproriate and intended to be humorous (you see the top of the fin go by outside the 10th floor window, for example) you might have an argument for parody.

[Colibri]

Legal advice is best suited to IMHO.

Colibri
General Questions Moderator

[Heracles]

IANAL.

There are similarly suspenseful themes somehwere in Stravinski's Rite of Spring, if I remember correctly, and that was published in 1913. Would it be less problematic to reuse those themes instead?

[Terr]

IANAL.

There are similarly suspenseful themes somehwere in Stravinski's Rite of Spring, if I remember correctly, and that was published in 1913. Would it be less problematic to reuse those themes instead?
I submitted a sync license request. If they give me an exorbitant quote, I will consider some other theme.

[antonio107]

IANAL.

There are similarly suspenseful themes somehwere in Stravinski's Rite of Spring, if I remember correctly, and that was published in 1913. Would it be less problematic to reuse those themes instead?

I am a law student (I.e., IANALY) and did a few university degrees in music.

This. There are many ways to get around this, including composing a ripoff of the jaws theme. Maybe a roving minor third instead of a semi-tone; someone where the listener knows what you're going for, but it's definitely not John Williams. At least that's what I'd do!

[Rachellelogram]

Would it be considered fair use if he didn't intend to sell the game or profit from it otherwise, though? It's one thing if you plan to sell it or put ads up on the same page, but if it's a 100% freeware/ad-free game, would it be ok?

[Terr]

I am a law student (I.e., IANALY) and did a few university degrees in music.

This. There are many ways to get around this, including composing a ripoff of the jaws theme. Maybe a roving minor third instead of a semi-tone; someone where the listener knows what you're going for, but it's definitely not John Williams. At least that's what I'd do!

Well, that's another question I guess - the game is an educational game and is targeted at grades 1 through 4. Will those kids even know the theme from Jaws when they hear it? I would hate to pay the licensing fees etc. and have it be a wasted effort.

[Terr]

Would it be considered fair use if he didn't intend to sell the game or profit from it otherwise, though? It's one thing if you plan to sell it or put ads up on the same page, but if it's a 100% freeware/ad-free game, would it be ok?It's a good theoretical question, but it's not going to be freeware :) This is going to cost me $5-6K to develop, plus the programming sweat equity, it better make *some* of it back.

[antonio107]

Well, that's another question I guess - the game is an educational game and is targeted at grades 1 through 4. Will those kids even know the theme from Jaws when they hear it? I would hate to pay the licensing fees etc. and have it be a wasted effort.

Sounds like all the more reason to NOT ripoff jaws. The cultural reference is lost on them! :)

[Terr]

Sounds like all the more reason to NOT ripoff jaws. The cultural reference is lost on them! :)Well - the game is targeted at kids, but the buying of it is targeted at the parents :)

[antonio107]

Also, just because logic and common sense tells you that something is "fair use," just remember that neither of those have stopped music labels from bullying around people, big and small, as seen here (http://arstechnica.com/tech-policy/2012/07/major-label-uses-dmca-to-take-down-romney-ad-of-obama-crooning/), for example.

[raspberry hunter]

IANAL and everything I know about law I found out from the Internet, so the accuracy rate is I'm sure incredibly low, but -- I feel like I read somewhere that up to four notes was not considered a copyright violation; so Stephen Schwartz was able to take four notes of "Over the Rainbow" and quote them extensively in Wicked songs without setting up a copyright violation.

Is this not right? Now I'm kinda curious.

[antonio107]

IANAL and everything I know about law I found out from the Internet, so the accuracy rate is I'm sure incredibly low, but -- I feel like I read somewhere that up to four notes was not considered a copyright violation; so Stephen Schwartz was able to take four notes of "Over the Rainbow" and quote them extensively in Wicked songs without setting up a copyright violation.

Is this not right? Now I'm kinda curious.

If that were true, then you wouldn't be able to copyright the intel processor theme.

There's presently a copyright battle over the "charge!" theme in Miami-Dade, which is either 6 or 7 notes, depending on which version you heed to. So, based on this, I'm going to say the four note rule--if it exists AT ALL--is definitely not hard and fast.

[Terr]

If that were true, then you wouldn't be able to copyright the intel processor theme.

There's presently a copyright battle over the "charge!" theme in Miami-Dade, which is either 6 or 7 notes, depending on which version you heed to. So, based on this, I'm going to say the four note rule--if it exists AT ALL--is definitely not hard and fast.
From the earlier cite by Mr Downtown: http://www.ivanhoffman.com/fairusemusic.html

In Bridgeport Music, Inc. et. al. vs. Dimension Films et. al., the Court found that the use of 3 notes, lasting 2 seconds, from a sound recording called “Get Off Your Ass and Jam” (“Get Off” in the opinion) in the track called “100 Miles and Runnin” (“100 Miles” in the opinion) contained in the sound track of a motion picture called “I Got the Hook Up” (“Hook Up” in the opinion) was not fair use.

...although the case is not exactly applicable to my situation, since I am not using the original recording, but just the composition itself.

[antonio107]

From the earlier cite by Mr Downtown: http://www.ivanhoffman.com/fairusemusic.html

In Bridgeport Music, Inc. et. al. vs. Dimension Films et. al., the Court found that the use of 3 notes, lasting 2 seconds, from a sound recording called “Get Off Your Ass and Jam” (“Get Off” in the opinion) in the track called “100 Miles and Runnin” (“100 Miles” in the opinion) contained in the sound track of a motion picture called “I Got the Hook Up” (“Hook Up” in the opinion) was not fair use.

...although the case is not exactly applicable to my situation, since I am not using the original recording, but just the composition itself.

Yet on the flip side, the article you cite starts with this:

There is no fixed amount of permitted usage that is set forth in the fair use statute and the cases do not define any fixed amount of usage.

My guess is that has absolutely NOTHING to do with the number of notes you appropriate. Rather, it has everything to do with how recognizable the tune is, IMHO. Frankly, the fact that it is a SHARK related game you're accompanying means you're deliberately trying to use it like in "JAWS," and so you can't even argue that it was an innocent mistake in that sense.

Also, copyright (at least as I was taught) extends to copies of an artistic work in any form. So it's moot whether you covered the piece, or took a recording from the soundtrack.

[Tabby_Cat]

I would say get a license if you can, or license some other music that has kinda the same theme if you can't afford Jaws. Because whether you're right or wrong on the law, the MAFIAA has money for lawyers and you don't. You really don't want to fight this, even if you're right.

[Terr]

Just an update: I heard back from the Universal studios. They denied my request to license the Jaws theme for the game. No reason provided. Ah well. Gotta find some other suspenseful music.

[Gray Ghost]

Isn't there a difference between asking for a license to use the performance of the clip used in the movie Jaws (or on the soundtrack to same) and licensing the right to independently perform the composition that's on the sheet music?

I can see where directly copying a sample from the movie/soundtrack is directly copying the protected sound recording work---and comparatively expensive---but IIRC, licensing the right to copy the sheet music and independently playing the notes was a lot cheaper.

IANAL, and certainly not a U.S. copyright lawyer, but isn't there a compulsory licensing regime for those who want to perform from sheet music? (IOW, if it's compulsory, the rights holder can't deny you the right to perform a copy of the music; you just have to pay the licensing fee.) Looking at this primer (http://www.djcounsel.com/?p=259) on U.S. recorded works copyright law, it sounds like you would want a mechanical license to reproduce the work.

The US Copyright Office has the following list of licensing fees (http://www.copyright.gov/carp/m200a.pdf) for a mechanical license. I do not know if that is applicable in your situation, but it might. Is there a reputable lawyer in your area that you could discuss this matter with?

Edit: I also don't know if your incorporating your MIDI performance of their composition, within a publicly distributed video game, would constitute a 'public performance' of the protected work. I don't know whether a compulsory licensing regime exists for public performances, and if so, what the additional fees would be.

[Terr]

Isn't there a difference between asking for a license to use the performance of the clip used in the movie Jaws (or on the soundtrack to same) and licensing the right to independently perform the composition that's on the sheet music?I asked for a "synchronization license (http://en.wikipedia.org/wiki/Synchronization_rights)". I specifically told them (it was an item on the application) that I would re-record the theme and not use the original. Mechanical license would not have been sufficient since the intended use is in a video game. At least, that's as far as I am understanding the matter.

[Peter Morris]

I would say get a license if you can, or license some other music that has kinda the same theme if you can't afford Jaws.

I guess the New World Symphony (http://www.youtube.com/watch?v=yctfXIqugXc)is out of copyright (although specific recordings aren't)

[Gray Ghost]

It does sound to me like a synch license is what you want. With a master use license if you wanted to use the actual recording used in the movie or soundtrack.

After reading this account of a man trying to license a Nat King Cole recording (http://www.spokesmonster.com/2010/11/licensing-music-for-your-online-ad/) for his online banner ad, I'm not surprised Universal blew you off. From the link, the Canadian (?) agency contacted re the synch rights for the NKC clip wanted a ballpark figure of $15K. For a banner ad running for one year.

I'm guessing the Jaws rights would be similar, or even more expensive, even though the excerpt you'd be using would be a lot shorter. Crazy. I had no idea it was potentially so ludicrously expensive.

[Terr]

I guess the New World Symphony (http://www.youtube.com/watch?v=yctfXIqugXc)is out of copyright (although specific recordings aren't)You know, this is an interesting question. If I take a few notes from the beginning of this, and loop them, this would sound an awful lot like the theme to Jaws - not exactly, but the resemblance would be immediately recognizable. Is there any way Universal can sue me for using this when there is a shark sighting in the game?

[Terr]

So - a followup

Here is Dvorak's 9th symphony, 4th movement (which is not under copyright) - http://www.youtube.com/watch?v=Eo1KHr-b-CA

Listen to the first few notes - sounds like Jaws, right? So I took the MIDI version of this, sampled it, repeated a couple of notes, changed tempo and pitch and came up with this:

Shark Sound (http://www.mymagneticsculptures.com/shark.mp3)

Question: if I include this sound in my game (and play it when the shark shows up), does it in any way violate Universal's copyright on Jaws theme?

[Hilarity N. Suze]

This is NOT legal advice. It is an anecdote.

A couple of years ago I wanted to use a certain piece of music on a very short video I made. I looked up the performer of the song and sent an email, and got a very quick reply where he gave me the right to use his version. He also sent the email address (there was more than one, actually) of the person who wrote the song and suggested I might get their permission, too, which I did.

I was lucky in that everybody replied very quickly and nobody had a problem with my using it, and it was all resolved and legal in two days. So it can be just that easy.

Getting permission in that case was a lot cheaper than talking to a lawyer for even six minutes. It also didn't cost a thing, but of course I noted that I was not doing my video for profit. I did say I would be posting it on Youtube, which I did.

But note that I needed the permission of both the composers and the performer.

(This song also had words, but the version I used was instrumental only so I dodged that bullet. Which would have been, again, artist and writer.)

[Peter Morris]

Here is Dvorak's 9th symphony, 4th movement ...
Listen to the first few notes - sounds like Jaws, right? So I took the MIDI version of this, sampled it, repeated a couple of notes, changed tempo and pitch and came up with this:

I can't answer the legal question, but just for clarification how was the midi file made? Did you play the notes yourself, or is it copied from youtube, or other performance?

The symphony itself is presumably no longer in copyright, but any specific performance certainly would be. You'd still need to secure the permission to use it, but that would probably be easier to get than the Jaws theme.

IANAL, the above is a guess.

[Terr]

I can't answer the legal question, but just for clarification how was the midi file made? Did you play the notes yourself, or is it copied from youtube, or other performance?MIDI is purely artificial sound, no one plays the notes, you just throw in the instrument definitions and tell them what to play. For now, for quick/dirty testing, I just copied it from somewhere - MIDI sound is cleaner than performance sound. If I go ahead with this, I will hire someone to make a new MIDI file for me for these few seconds at the beginning of the symphony.

[antonio107]

It is my law-student opinion that John Williams and Steven Spielberg will send teh Lawyerz after you, even if you claim it's actually Dvorak and not Jaws.

Tom Waits once sued someone for sounding too close to his style in a Frito Lays commercials. I don't think you appreciate how creative these litigious types can be! :D