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I am creating a video game that is open-source and will be distributed for free (i.e. not-for-profit) on itch.io. I would like to use a copyrighted song as part of the background music.

My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use?

I am located in Australia, and itch.io operates out of the USA. Thanks.

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    Hello. Quick comment: the reasoning "I am letting lots of people use this work for free" cannot constitute "personal use". Personal use means that you and you alone use the work.
    – MichaelK
    May 30 at 9:08

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My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use?

There are some "private use" exemptions in Australian copyright law but they have some fairly narrow conditions.

These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee.

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  • "[private use exemptions] do not apply to musical compositions" - Are you sure this part is accurate? In the law, there appear to be several chapters for each type of media, and one of those covers sound recordings (See 109A). In any case, I agree that nothing in 109A would allow distributing a copied recording as part of an open source game, since part of the definition of "private and domestic use" is that the private copy not be distributed.
    – Brandin
    May 30 at 12:31
  • @Brandin the exemptions are "Reproducing works in books, newspapers and periodical publications in different form for private use," "Reproducing photograph in different format for private use," and "Copying cinematograph film in different format for private use." When I wrote that, I overlooked the possiblity of a musical composition being published in a book, newspaper, or periodical. I'll remove that sentence.
    – phoog
    May 30 at 12:47
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    Yes and there's also one other exemption entitled "Copying sound recordings for private and domestic use" 109A which is the part which potentially covers this scenario. In this case, the phrase used in the text is "private and domestic use" which is like "private use" but is a bit more broad since domestic use can also mean giving/lending a copy to a family/household member. In any case, it doesn't apply to this scenario, unless the OP wants to make the open-source game ONLY available to his family (which is not really open source under any definition I've heard).
    – Brandin
    May 30 at 12:57
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You are distributing the music to other people, so this doesn’t look like personal use at all.

You can find music that is sold for exactly this purpose cheaply. (Similar to stock images that can be quite cheap). The seller probably knows how to combine this with open source.

Or you can modify your code so that it lets the user choose music on their computer, assuming that they have the right to play that music.

But also to keep in mind: If you create software including proprietary music, and manage to do this legally (fair use, private use, no profit or whatever arguments to use the music), and distribute everything under an "open source" license, then you give everyone permission to copy this as long as they follow the open source license. With the GPL license for example you claim that you give ME the right to copy everything, turn it into a commercial product, and sell it for $100 a copy, as long as I follow the GPL license. But whatever legal excuses you had to copy the music don't apply to me, so we have a legal problem.

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As gnasher729 says, it's clearly not personal use. I'd like to consider the idea that it's not-for-profit.

If you're using itch.io, there seems to be no way to ensure you would not be paid for the game. Itch.io's website tells us :

On itch.io, any price you set is the minimum price. Even if you're giving your content away for free, downloaders will still have the opportunity to send you money before they download.

Even if there was a way to ensure you received nothing, itch.io is a commercial entity, so their making games available would count as commercial activity irrespective of whether any payment was made to the individual developers.

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    On the other hand, if you are giving something away and someone else takes that thing and then gives you some money, that doesn't by itself turn it into a commercial transaction. It's not necessary to "ensure you're not paid for the game," only to ensure that the money is not quid pro quo. (Also itch.io's terms of service cast them as a platform by which users publish and distribute material, so it's not at all clear that "they, not you, would be the distributor.")
    – phoog
    May 30 at 8:56
  • @phoog - Fair enough - I did wonder whether there would be some kind of carrier deniability. That phrase is gone. I still think there's enough there to make a definition of not-for-profit tenuous at best.
    – ItWasLikeThatWhenIGotHere
    May 30 at 17:58

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