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I've transcribed a lot of video game music in my lifetime, and am interested in making these sheet music transcriptions freely available for download on a website. I see that a lot of other websites have done this, such as Ichigo's Sheet Music or NinSheet Music.

I noticed that the above site, Ichigo's Sheet Music, states that the transcriptions and giving them away falls under Fair Use. Is that correct?

Specifically:

1) Are there any legal consequences to be concerned about with this practice if the transcriptions are given away for free?

2) Are there any legal consequences if I put ads on the website where the transcriptions are to be hosted?

I realize that a similar question has already been asked at the below link, but I did not find the answer that pertains to this specific case. Transcribing music and the legality of using musical transcription

  • The copyright information at the linked Ichigos site is of questionable legal validity, under US copyright law, including the reference to the "fair use" nature of their site simply because it is restricted to "non-commercial use." Not all non-commercial uses are automatically "fair use", otherwise it would be pointless to have other statutes that specifically exempt certain other non-commercial uses (classroom use, non-profit public performance of non-dramatic works, etc). – Upnorth Aug 30 '18 at 21:21
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That linked question has the answer. Transcriptions are derivative works of the original, thus the copyright owner reserves all rights to create and distribute transcriptions. Giving away for free does not matter. Imagine you wrote a book and were trying to sell it. What if I copied your book and started giving it away? You would sue to make me stop. I think your second question is done away by the answer to the first. Except that if you were sued for disgorgement damages (where you have to pay back your profits) the ad revenue would be a factor. (The other type of damages are called statutory damages, where it does not matter how much the copyright owner lost, the statute allows for $x of recovery, and it's a big number, like tens of thousands.)

  • Tens of thousands per work. And "work" is probably every piece of music, not every video game. – gnasher729 Apr 11 '18 at 11:13
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Yes, the copyright owners have the exclusive right to make or authorize making of derivative works, including transcribed music, subject to the limitations of "fair use", mandatory licensing of covers, and other statutory exemptions (such as performing non-dramatic works in public or in church for free). 17 USC §§ 106, 107, 110, 115...

There are possible civil damages, including (in the USA) statutory damages, and attorneys' fees, even if you don't make a dime on giving it away (e.g., $150,000 per song). 17 USC §§ 504, 505.

Finally, there are criminal laws that kick in when the amount of copyright revenue thwarted by unlawful copies reaches about $1,000 within 6 months. The "No Electronic Theft Act" made it a criminal copyright infringement, even if you do not personally profit from the unauthorized distribution. 17 USC § 506.

Of course, if the copyright owners don't care, nobody else does either. This is often the case with various forms of "fan art", within the limits of making profits from your unauthorized works without even acknowledging the original artists, or whatever happens to tick them off.

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    This doesn't address the Fair Use aspect at all. For example, transcribing music from a video game in order to teach someone to play it on a guitar could be considered a very different use than the original purpose of the publication (for entertainment in a video game). – Brandin Dec 12 '17 at 9:30
  • Why would you need to transcribe someone else's music to teach someone to play the guitar? – gnasher729 Apr 11 '18 at 11:13
  • @gnasher729 Normally to learn to play a song (e.g. on a piano) you read the music from a book. What is written on the book in musical notation is a transcription (e.g. from the original version that you could hear by listening to it a musician transcribes it onto paper, aka sheet music). If you learn to play on a guitar, often a different notation is used, aka tablature or tabs. That notation is also a transcription. – Brandin Aug 29 '18 at 13:25
  • @Brandin To address your earlier comment: something doesn't become "fair use" simply because it may be a "very different" transformative use. One must also evaluate the purpose and character of the work, the creativity of the new work, the amount copied, and the impact on the market for the original work and its authorized derivative works. For example, it would certainly not be "fair use" to publish a slavish transcription for an entire song, even for "education", if the copyright owners were already distributing such a thing. – Upnorth Aug 30 '18 at 16:04
  • @Upnorth Yes I meant the purpose of transcribing a song to teach someone to play it seems like a very different purpose than the original (to write it to provide background music in a video game). – Brandin Aug 31 '18 at 8:24

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