kamsonowicz
Offline
Łódź, Poland

Hi guys!
Today I have more of a “legal” question that in general is about chiptunes but may as well be about copyrights. :)
Ok, but let’s get to it.

I’m currently working on my second chiptune album and I want to publish it soon, hopefully within 1-2 months. The thing is - it will be a cover album, with covers of Amiga modules from games, demos and general demoscene. Now, I have two major concerns regarding the album:
a) I want it to be called “Amiga covers” (yeah, took me a while to come up with this name... :P),
b) well, it’s full of covers. ;)

My first album (https://push.fm/fl/ebibq51t) is available almost everywhere (like Bandcamp, YT, all major streaming services) but that is my original work. Now, with the second one, it’s not so easy. First of all I’m not sure about using the “Amiga” name. I have seen an album with “Amiga” in its name before, it was available on Spotify so let’s say it should be OK. In the end it’s just a Spanish word, right?

But what about the covers themselves? I’d like the album to be available on streaming services too but the nature of those is that you can get paid for the streaming. Don’t get me wrong, I’d don’t think I’ll ever be paid, I’m just not that popular. ;) (Just let me tell you that my first album made about 10$ in 5 years lmao and it still needs to get another 40$ for a payout because they pay cash when you reach 50$ lol).

Anyway, some of the original authors (eg. Jester, Olof Gustafsson, XTD, Emax etc) may be against monetisation of that kind. That’s why I wanted to get some advice on that. Is it OK to publish this kind of work on commercial services like streaming sites? I can in the end just put it on Bandcamp, with free listening and download, and YouTube. Then I think there will be no issue whatsoever. But I’d just love to be able to put it on Spotify, Deezer and Tidal as well (I could skip iTunes as I think you cannot withdraw your tunes from the store itself and keep them just in the streaming section) just to boost the possible audience.

I’ll appreciate the feedback, thanks. :)

BLEO
Offline
Geneva, NY

Chip music should not follow any different rules, laws or guidelines than any other music.

Doctor Octoroc
Offline
Philadelphia

I've gone through this process for two chiptune cover albums, although I covered more prominent bands (Neutral Milk Hotel and The Flaming Lips) and wanted to do everything completely legal so went through the proper channels, reached out to the bands, their manager and lawyer, notified them of my intent, and used Easy Song Licensing to set up royalty payments (but you could use any licensing site). I also got permission from band members (via their manager) to use their likeness in artwork, as well as reached out to the album artwork designers for approval on my designs, which were derivative of their own work. Basically if you're doing any sort of derivative work (a cover, a pixel art version of a graphic, etc), you need permission and/or to compensate the artist.

Now given, the artists you're covering might not be listed through a licensing site like ESL unless they've been around awhile and have released multiple albums through a label or collective, so you may have to go to them directly if that's the case. If they (or their representative) haven't registered the copyrights, they likely won't be in any database - but their work is inherently copyrighted even if it's not registered. I haven't gone 'directly to the source' before but in all my interaction with the members and associates of previous bands whose work I covered, they were always nice, answered my questions and told me what they expected from me (a la paying royalties, proper credits, etc).

It's also important to note that even if you don't stand to make any money from a project (eg putting it on Bandcamp for free or in the context of a YouTube video) it is still copyright infringement all the same as if you were seeking monetary gain. Any work that is a cover or derivative of copyrighted source material is inherently an infringement if certain steps aren't taken (and if they don't fall under fair use, which a cover album does not) and if they registered the work(s), they have extra legal power to protect it. As an example, I released my first cover album through Kickstarter and included downloads with the physical vinyl records for backers but still had to pay royalties on the 'free' downloads, in addition to royalties on the physical copies. just because you give it out for free doesn't mean it's exempt.

I think that most people don't realize how many people on YT, BC, etc are infringing on copyright because too many people don't look at it legally but logistically - for example, most people think that if you're not making money, you can't be sued, but you have to consider that any work that is protected has that protection not just to prevent others from making money using it (or some version of it) but to protect the integrity. Like if I covered a song from a kid's show and changed the lyrics to be raunchy, that would be a problem for the image/brand. But that's just an extreme example where they would be far more likely to pursue litigation.

I'm not a lawyer and have no extensive knowledge of copyright law but as a general rule of thumb, better safe then sorry. If you don't know with 100% certainty that it's safe and legal, don't do it unless you're willing to risk litigation. Given, there will always be a subjective %risk with anything, and I've certainly taken my fair share of (what I considered to be low) risks with projects in the past, but that's a personal choice you need to make. A good example of that is me covering the soundtrack to Dr. Horrible's Sing-along Blog. I received a cease and desist from Joss Whedon's lawyers but was able to reach out through one of the writers of the series to get them to back off. On the one hand, you have a company like Capcom endorsing artists who cover music from their games while Nintendo has issued DMCA take downs on multiple fan projects. And then there's the photographer credited with Miles Davis' "Kind of Blue" album cover who sued an artist for his derivative pixel art version of that album artwork for a cover album of the original. You just never know how the original artist, or their lawyer(s), will react.

Last edited by Doctor Octoroc (Jan 22, 2021 2:19 pm)

kamsonowicz
Offline
Łódź, Poland

Hey Doctor Octoroc, thank you so much for the comprehensive answer!

I definitely want to be safe than sorry - even if I don't do it for money - that's why I decided to investigate a bit.

I understand you have covered "standard" commercial music, and with that there is no question, for sure you need these mechanical licences. I'm just wondering if my situation is any different:
a) 7 out of 10 tunes I want to cover are demoscene music, which in general is on public domain licence. I don't think I need any additional licences for these.
b) 3 out of 10 are form old video games (Lotus III, Pinball Illusions, Flashback) - surely they are not public domain, but I'm also not sure if those would be registered anywhere to get the licenses.
c) most important thing - I've read that if you post to streaming services like Spotify Deezer, Apple Music, Tidal etc. they already pay for the licenses, so you don't need to do anything more when publishing covers. Another thing may be stores with music (iTunes, Amazon) but I can easily skip those.

Case may be a bit tricky with Bandcamp and YouTube as they don't pay the licenses themselves, so you need to take care of it by yourself - if you actually need it that is (or can do it at all). That's why I'm asking, I think in my example I just don't need it:
a) because demoscene is PD,
b) because there's probably no way to acquire licences for retro games music (apart from contacting the authors themselves?),
c) because - in the end - it's generally non-commercial. I know it may be not all that important to some people but I'm counting on some common sense of the original authors. wink

Is my line of thinking valid?

Last edited by kamsonowicz (Jan 22, 2021 2:40 pm)

irrlichtproject
Offline
Nomad's Land
kamsonowicz wrote:

a) 7 out of 10 tunes I want to cover are demoscene music, which in general is on public domain licence. I don't think I need any additional licences for these.

a) because demoscene is PD,

Quite the opposite, nearly all demoscene output is All Rights Reserved, and in fact many demosceners won't be pleased about having their works exploited like this. You should absolutely talk to the original authors before doing this. I'm sure folks will be open to discussion, though.

Doctor Octoroc
Offline
Philadelphia
kamsonowicz wrote:

Hey Doctor Octoroc, thank you so much for the comprehensive answer!

I definitely want to be safe than sorry - even if I don't do it for money - that's why I decided to investigate a bit.

I understand you have covered "standard" commercial music, and with that there is no question, for sure you need these mechanical licences. I'm just wondering if my situation is any different:
a) 7 out of 10 tunes I want to cover are demoscene music, which in general is on public domain licence. I don't think I need any additional licences for these.
b) 3 out of 10 are form old video games (Lotus III, Pinball Illusions, Flashback) - surely they are not public domain, but I'm also not sure if those would be registered anywhere to get the licenses.
c) most important thing - I've read that if you post to streaming services like Spotify Deezer, Apple Music, Tidal etc. they already pay for the licenses, so you don't need to do anything more when publishing covers. Another thing may be stores with music (iTunes, Amazon) but I can easily skip those.

Case may be a bit tricky with Bandcamp and YouTube as they don't pay the licenses themselves, so you need to take care of it by yourself - if you actually need it that is (or can do it at all). That's why I'm asking, I think in my example I just don't need it:
a) because demoscene is PD,
b) because there's probably no way to acquire licences for retro games music (apart from contacting the authors themselves?),
c) because - in the end - it's generally non-commercial. I know it may be not all that important to some people but I'm counting on some common sense of the original authors. wink

Is my line of thinking valid?

Your line of thinking can be logistically sound but the law doesn't always make 'common' sense.

I don't know much about the demoscene but when we're talking about public domain (as in anyone can use the work for whatever purpose), unless the works were specifically released to be PD (either at time of creation or after the fact) or are over a certain number of years old (like 20-100 depending on the medium), they're protected by copyright simply by existing. If you believe any given works are PD then you should research them to be sure and need to be able to present positive proof that is the case, not claim you couldn't find evidence that they are. In other words, if you look around online and can't find whether or not a given work is copyrighted or in the PD, you shouldn't by any means assume it is or isn't. I did a Christmas album over a decade ago and made sure that every track was indeed public domain (hence I didn't cover any modern Christmas songs) so nothing could bite me in the ass later.

Again, I can't stress enough, It doesn't matter if it's 'standard' commercial music or some guy whacking on trash cans in his garage, any original work (or derivative work that doesn't legally infringe on an existing copyright) is inherently protected by copyright unless expressly determined otherwise by the original creator (or their representative). So if for any of the tracks you're covering, you can't find a registered copyright, it may still be copyrighted, just not registered, so litigation can still be pursued, they just won't likely sue you for millions (probably closer to tens of thousands, from what I've seen) if they chose to do so.

So you are correct that streaming services pay royalties for covers but that doesn't necessarily mean you're off the hook. I wouldn't take anyone's word for it if they're saying they stream through Spotify and don't have to pay royalties because the service does - they might be sorely mistaken themselves. Depending on the fine print, you may still have to pay royalties yourself, albeit a lower rate than if you were, say, selling digital downloads or physical copies of the album. Given, I don't stream music that I pay royalties on, but given that it's an option through ESL to license tracks for streaming, I wouldn't bet on it being free for you.

As far as YouTube, Bandcamp, etc. is concerned, treat each watch of the video or download of the album as if it were a physical copy sold (although at different rates, usually).

Bottom line, better safe than sorry is either to consult an actual copyright lawyer or just not do it.Otherwise, as I said before, weigh the risks for yourself and decide. But I don't think anyone here is going to give you tacit approval to do what you're talking about. It's good that you're asking the questions but we're not lawyers or experts on the matter. I just happen to have minimal experience being a contract artist for the last decade and running into these situations myself!

kamsonowicz
Offline
Łódź, Poland

OK, guys, thank you so much for the feedback. You gave me something to think about and I think I'll try to check if I can somehow contact original authors to check if they are OK with me publishing the covers of their old modules. smile Cheers!

Doctor Octoroc
Offline
Philadelphia
kamsonowicz wrote:

OK, guys, thank you so much for the feedback. You gave me something to think about and I think I'll try to check if I can somehow contact original authors to check if they are OK with me publishing the covers of their old modules. smile Cheers!

Happy to assist in any way I could! And I think it's good form to reach out to original artists regardless. If you like them enough to cover their music, why wouldn't you be interested in the prospect of speaking with them (or their representative)? I never spoke with Wayne Coyne directly while working on my Flaming Lips cover album but I was in touch with their photographer/album art designer and the band manager and knowing that they were running things by the band was a great source of joy for me! It was also great to hear that Coyne listened to my covers and liked them.

Last edited by Doctor Octoroc (Jan 22, 2021 4:02 pm)

unexpectedbowtie
Offline
Glasgow, Scotland.

Hey. I know a thing or two about copyright law (well, in truth, that's a bit of an understatement).

What Doctor Octoroc has said above is pretty spot on, and backed up with real world experience, so you should listen to them. Some specific thoughts from me:

a) 7 out of 10 tunes I want to cover are demoscene music, which in general is on public domain licence. I don't think I need any additional licences for these.

As Doctor Octoroc said, if you know for a fact that something is in the public domain, then you can do what you want. The chance of this actually being the case is rare though, unless the authors' have specifically released their material under something like the CC0. Just underlining this point.

b) because there's probably no way to acquire licences for retro games music (apart from contacting the authors themselves?),

There's a few misconceptions here. Firstly, an inability to get a license doesn't mean the material isn't protected by copyright (though this varies by jurisdiction). Secondly, the authors won't necessarily own the rights to the material anyway. It could well be that the companies that produced the games own the rights.


c) because - in the end - it's generally non-commercial. I know it may be not all that important to some people but I'm counting on some common sense of the original authors. wink

Again, a few things. Firstly, as soon as you put it on a streaming platform, that's a commercial use. It doesn't matter if Spotify will basically never pay you anything - it's the nature of the use that counts, not the end product. A failed business is still a business. Secondly, non-commercial use doesn't allow you to use material without permission by default. There are concepts of 'fair use' and 'fair dealing' which do take into account the nature of unauthorised use, but that wouldn't apply in this case, for a whole variety of reasons.

Also, there's other considerations here. Again, the authors may not own the rights to the material. The original development company (or their modern form) may. Secondly, lots of folk won't be happy or view things the same way you do in relation to common sense if you haven't spoken to them beforehand. Third, it is pretty trivial for them to have the release pulled from distribution if they are unhappy. Finally, you need to make a declaration to your distributor and/or the platforms you release on that you have the necessary rights to use the material. If you don't, and they find out, then many of these distributors don't give second chances, and you could lose your ability to upload other material in future (this is not going to be as strict on something like Bandcamp, but still).

I hope that helps! In this case, since you're talking about artists who are not in the major commercial leagues, I would reach out to them and explain your project. Explain why you love the music and want to make a tribute, offer to credit them etc, and gain their blessing. They might tell you they don't hold the rights to grant, they might tell you no, or they might tell you yes... but if you can't get some kind of confirmation from them, it would be unwise to go ahead and release the covers on a commercial platform. Litigation may be unlikely (unless Nintendo are involved!), but it's poor form if nothing else.

kamsonowicz
Offline
Łódź, Poland

Gentlemen, thanks again for all the help and feedback. It was a right thing to ask before doing anything. :)

So after everything I've read online and the comments I've got, including everything in this thread I decided to do the following. I'll try to reach all of the original authors to check with them if they agree to what I'm planning to do. Some are not so easy to reach, from two of them I already have the green light and from others I still wait for the reply, remains to be seen if I'll get it. :)

So if I will not be able to hear from all of them, I will publish the album just on YouTube, without any monetisation and with links to original tracks. Maybe even with a comment like "if you're the original author and don't want your composition to be included here please contact me" etc.

Both Bandcamp and SoudCloud require the permissions to be secured for the covers so without these, the two services are a no-go. Streaming sites may be even more tricky. So yeah - either I'll get the permissions or it is YouTube only. Which still will be fine.