Does programmatically looping a song in a game qualify as a derivative work?

Question

If I want to put a song licensed under a Creative Commons license that does not allow derivatives (such as CC BY-NC-ND 3.0), am I allowed to programmatically loop (or apply effects) to the song when it is being played in my game?

This is a tricky question because things like ROM hacking are technically legal because they do not distribute derivatives; they distribute a tool that lets you modify your copy of a ROM. The only difference here is that I have rights to distribute the song in my game, along with the game itself, which would act as a tool to "modify" the song.

I am most likely not going to release my game's source, if that has any relevance.

Answer 1

^{This is not legal advice. You shouldn't be trusting legal interpretations from an unqualified, Canadian secondary school student. I advise you to seek professional advice from a qualified person.}

The question you've asked here, is whether programmatically looping a song results in a derivative. The question at stake is a general one: when does manipulating a work result in a derivative?

First things first, we need to figure out what a definition of a "derivative work" is. The license of the work you are using says the following:

"Adaptation" means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.

Ooh. Fun stuff.

Looking at this, there's a bit of a conflict here.

The license, in it's last sentence in its definition of "Adaptation" states that the concept of playing music with an image qualifies as an adaptation of the work. But when is a musical work "in sync" with a visual display? Unfortunately, I'm not aware of any case law that touches upon this, but, in my opinion, it could be reasonably interpreted that the musical work must be synced to play at specific points in relation to the animated display. While a musical work may be played at the start of the animation of a display, it is no longer in sync if either work does not change based on the status of the other work. In other words, if the position of playback for the musical work doesn't depend on the animated display, or vice versa, than it's not an adaptation. But of course, that conclusion is not definite.

The conflicting part here is that an adaptation includes the definition of a "derivative work." The license doesn't really define the term, and naturally, we'd look on to statutes and legislation to find a definition. However, does programmatically looping a musical work qualify as a derivative work?

The Supreme Court of Canada thinks not. In Théberge v. Galerie d'Art du Petit Champlain inc., they wrote (and I quote):

[73] I should note that while there is no explicit and independent concept of “derivative work” in our Act, the words “produce or reproduce the work ... in any material form whatever” in s. 3(1) confers on artists and authors the exclusive right to control the preparation of derivative works...

That, along with most of the judgment, brings us to the conclusion that for a derivative work to be made, there must be a reproduction. For this to take place, the work must be reproduced in a material form. However, no new material work is produced when looping a musical work, meaning that programmatically looping a song does not qualify as a derivative.

Does this apply to the United States?

It is repeated many times in the Canadian judgment that the American definitions are much more expansive and broad. Again, I'm not largely familiar with American case law, but I would imagine that the results be similar, the work was never transformed in any way, but rather just played repeatedly.

Conclusion...

Since no new work is being transformed, it is my opinion that there is no derivative work.

Answer 2

It seems clear to me that a song licensed with a CC-ND (no derivatives) clause does not allow remixing the work in a larger work such as a game. So looping the song without editing the content of the song is fine, but including it in a game is not.

Most CC-ND content I've looked at is attached to an email address that is dead, so even contacting the author to get permission under a different license isn't an option. I recommend you look elsewhere. There is plenty of CC-0 and CC-BY content that welcomes re-mixes including inclusion in a game.

Answer 3

I would argue that if you add effects to the song by manipulating the original file you create a derivative work which is not allowed by the license.

Playing the song multiple times in a loop should be OK because you don't modify it, so it is not a derivative work.

A interesting scenario is, if you add effects not by manipulating the song but by just playing the effect in parallel to the original song. In this case it looks like a derivative work for a observer but if you look at the technical details it is not.

I have not that much experience in this area of copyright, so no final answer but I thought it might be useful to add my thoughts.

Answer 4

Indeed, as observed above, if you add effects to the song (the effects would make no sense if the song wouldn't exist), you're creating a derivative work. You don't need to create a separate medium for it to be counted as a derivative; a mere reproduction would suffice (otherwise, everyone would be allowed to cover any song since, when you're playing live, you're not creating a new medium). As a test, a derivative work may be copyrighted (when legally allowed by a license, of course), thus, if you think your work has enough creative input to be considered a new piece of art, it's a derivative, and if the original work was non-derivative, it's an illegal derivative.
As for the loop -- which was the main reason I landed here --, I still have my doubts... Since you have no creative intention to create a new art object, I wouldn't consider it a derivative -- you can't copyright a loop --, but the license seems ambiguous and who knows what a judge would decide... And there's the matter with the adaptation... I consider it two different things, but the license treats ND as prohibiting adaptations and considers synching adaptation... But what is synching? As noted above, if you just start the movie with the audio and do nothing else, is it adaptation? One may say it's not because you didn't do anything else further, but what if this is exactly what you wanted to synch? What if you edited the movie in order to synch with the song that was left exactly as it was released? So, I think this is one of the cases that unless see bring actual judicial decisions related to the matter in hand, we'll be just speculating...

EDIT: upon further reflection, we have also to consider the scope of the meaning of derivative/adaptation. If you consider derivative only the same artistic form, a looped song would not, obviously, be a derivative song, but if you consider the other art form as a whole -- for instance, a game --, since the loop was integrated into it, the game becomes a derivative: it was in part derived from the song. Thus, upon this interpretation, a song released under a ND license forbids its use in any derivative art form, including loops integrated in other media.