Quinton J Sheer, Esq.

So there I am, bobbing my head to a song, when my 10 year old self hears the old Castlevania theme in the background. I smile.  The song ends with a sound I remember from Super Mario Bros. I smile again, “ I love this song!”

There are many reasons why more and more bands are incorporating music and sounds from video games into their own compositions.  It invokes nostalgia in the listener.  Hearing that song brought me back to a time when my problems could be solved with 20 hours in front of a TV and a rectangular controller.  The use of video game sounds and music also establishes a connection with fans aside from the style and lyrics of the song.

While musicians are concerned mainly with creating and entertaining there are legal considerations when ever using material they did not create themselves. No artist is too new in their career to ignore these issues.  Copyright laws are not to be feared. They try to balance protecting an artist’s work without stifling the creativity of others.

Sampling vs. Cover Songs

Covering a song means playing/recording a song written by someone else. No permission is needed but a compulsory license must be obtained.  There is a set amount to be paid that is dictated by statute.  Compulsory licenses allow the original copyright holder (usually the publisher) to benefit from their efforts without allowing them to keep their creation from the rest of the world.

Sampling means taking the actual recording of one sound or part of something previously recorded and using it in another recording.  It is often meant to invoke the image of the original in the listeners’ minds. Obtaining a license for samples is not automatic/compulsory. Use of samples can require permission from both the publisher and the owner of the copyright in the sound recording itself.  With video games, those are often the same entity but not always.

Who Makes These Sounds Anyways?

Those who composed music for early video game systems had to have both the musical chops to compose and the technical knowhow to understand how their compositions fit into a game and system with limited functions. Many of the early composers worked for the companies who made the games and systems and consequently they were not seen as composers or artists in their own right. Their efforts were often ‘work for hire’ much like the old Hollywood studio system.

Thankfully, those pioneers, like Composer Koji Kondo (Punch Out, Super Mario Brothers, and The Legend of Zelda) are now being recognized for their work.  But because of how the system was created many would be samplers did not see sampling those sounds and music as stealing from an artist.  But not obtaining a license for these sounds is both wrong and illegal even if the owner of those rights is seen as a faceless corporation.

It’s Easy to do Things Right

It is important to remember there is still a copyright in the composition itself.  Even using midi versions of the music won’t absolve unlicensed use. And while there are tons of sites offering free video game music downloads, it does not mean those songs are copyright free. There was one group who told me it was too much money and hassle to get a license because they were just a local band. They told me they thought it would be cool to be sued so they’d get noticed.  I gave them the same advice I now give here: It is never cool to be sued.  It costs more and is more a hassle to be sued than to do things right the 1st time. As far as getting notoriety, no one wants to work with artists who don’t respect the process or the property rights of others.

As artist Biz Markie was told by Judge Kevin Thomas Duffy in 1991, “Thou shalt not steal.” [Grand Upright Music Ltd., v. Warner Bros. Records Inc., et al., 780 F.Supp. 182 (S.D.N.Y. 1991)] Other cases have shown that there is no number of notes or length of time that relieves samplers of their responsibility to get a license or clearance.

When considering including a sound or sample from a video game, David Powell, President of The Music Bridge, suggests to “first determine who owns those rights by going to the corporation that built the [gaming] system, to see if it needs to be cleared.  While this information can be obtained with a little sweat equity from the artist, companies like The Music Bridge can help make the process less stressful while also considering the budget of the artists.

While it may be as simple as going right to the source, that source may be hard to find or in another country.  Mr. Powell said, “It might be a work for hire or from a third party, in which case you need to go through the original copyright holder.” Bottom line, “[w]hether it’s from a video game, music, or movie dialogue, it’s still sample clearance.  Get to the bottom of who owns it and obtain a license.”

Because an artist is signed to a label does not mean they are free to sample and let the label seek clearances. Many label contracts from indies to the majors include provisions that require all recordings delivered to be wholly original. For all but the top selling artists this means, the band must make the effort and bear the expense.  That cost could depend on the notoriety of the artist seeking permission plus the length and prominence of the sample, among other factors.

If you’re a signed artist wanting to include samples of any kind into your songs, check your contract. If you don’t fully understand the contract or the process, seek the advice of those who can help.

Don’t get discouraged or let the process deter from creating the work you have in your head. The song that made my head move and me flash back to my youth was better for including those samples. But if you think that it’s ok to use samples without permission ask Biz Markie. He’ll tell you now, it’s not always best to beg for forgiveness when you can ask for permission.

**This article is for information only and is in no way to be considered legal advice or exclusive endorsement.  We encourage those with similar issues to the article above to seek the advice of knowledgeable counsel.  For music clearance services contact The Music Bridge or a trusted attorney. **


About Quinton J Sheer Esq.

Providing legal solutions and strategies for Entertainers and Athletes. I am not just a lawyer. I am an educator seeking to teach, to protect, and hopefully, to inspire those around me to follow their own dreams.
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