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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.

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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.

  • If no derivative work is reproduced in a material form, this is essentially a loophole in the Creative Commons "no derivatives" clause. People would be free according to the ambiguous definition of the license to just distribute "patches" that modify rightfully obtained originals. – Mark Aldrich Jul 20 '16 at 19:07
  • One could even develop a file format that consists of the original and a patch in one file, and when you open the file in a media player, it would apply the patch to the original and then play it. In this case, no derivative is reproduced in a material form, people are free to make derivatives, people are free to obtain these derivatives, content creators lose their rights, and everyone is complying with the license. – Mark Aldrich Jul 20 '16 at 19:08
  • @MarkPie I'm not sure I would call it a "loophole." Derivative works have long been understood to be synonymous with "modified works" - works based on another but have been changed. To put your question at hand, would looping a CC licensed song in iTunes for my own personal enjoyment qualify as a derivative work (and hence copyright infringement)? It's food for thought. As for your format, I think that is definitely a potential loophole. You've actually got me interested in researching something. Maybe I'll post a question and answer if I find anything :) – Zizouz212 Jul 21 '16 at 1:10
  • That doesn't count under the license, nor should it. I'm using that same method of "modification" and applying it to the distribution of derivates. Would looping the song, saving it to a file, and distributing it count as a derivative? Yes. Would distributing the file and a patch intended to modify that file for the purpose of viewing the derivative count as a derivative? That's what I'm trying to figure out – Mark Aldrich Jul 21 '16 at 1:15
  • @MarkPie It's an incredibly interesting and complex question. So would this application not create any file, but only modify existing files? I don't know. I'm going to try and figure this out. However, what do you mean by patch? Is the definition of a patch any application with the ability to modify and save an audio file? – Zizouz212 Jul 21 '16 at 1:21
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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.

  • Exactly. If playing an effect parallel to the work counts as a derivative, then one could argue that even a video game which plays only the original work and adds other sound effects (like footsteps, for example) could be considered a derivative. Also, the Creative Commons license doesn't prohibit making derivatives, it prohibits the distribution of the derivative. I would argue that the user, by choosing to run the program, is the one creating the derivative and the rule about not distributing the derivative they just produced applies to them, not me. – Mark Aldrich Jul 19 '16 at 23:46
  • Making a derivative work actually involves, well... making a separate work. Manipulating the work, whether it is through looping, or even distorting the track, isn't ever a derivative because nothing material is being produced. This was based on the Supreme Court of Canada ruling in Théberge v. Galerie d'Art du Petit Champlain inc.. – Zizouz212 Jul 20 '16 at 1:08

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