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…
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.
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.
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!
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?
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.
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, for example.
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.
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.
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:
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.
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.