Asked in Copyright and Intellectual Property for Alabama

Q: Can I use a portion of the GameBoy startup sound in my own song?

Im a musician and I'm writing a song about nostalgia. The Nintendo GameBoy was a huge nostalgia factor for me. The GameBoy startup sound is just one extended chord followed by an individual note. Could I possibly get sued by Nintendo if I put the chord from the startup sound into my song?

1 Lawyer Answer
Steve Charles Vondran
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  • Intellectual Property Lawyer
  • San Francisco, CA

A: The issue of copyright infringement is one that has been debated for decades, and while most people are aware that they can be sued for illegally downloading music, many are unaware that they can also be sued for using a short note, or sound clip, from a song. This is because even though the clip is short, it is still considered to be a copyright infringement if it is used without permission.

When it comes to copyright infringement for using a short note, or sound clip, from a song, it is important to remember that it does not matter how small the clip is, you are still infringing on the copyright of the song. This is because the copyright of a song covers the entire song, not just the chorus or the bridge. So, even if you use a very small portion of the song, you are still infringing on the copyright.

The first step for companies when it comes to protecting themselves from copyright infringement is to obtain permission from the copyright owner before using any portion of a song. This can be done by obtaining a mechanical or synchronization license. This license will allow the company to use the song in any manner they choose, provided they pay the appropriate royalty fees. It is important to note that this license does not include the right to alter the song in any way.

If a company chooses to use a portion of a song in their advertising or product without obtaining a license, they risk being sued for copyright infringement (unless they can prove "fair use" which is possible but should be closely analyzed before you do it). In the event of a lawsuit, the company may be liable for damages, including any profits they made from the use of the song.

If a company is found guilty of copyright infringement, they could face a variety of penalties. These penalties could include having to pay a fine, having to pay back any profits they made from the song, and even having to pay for the costs of the lawsuit. Additionally, the company could be subject to criminal charges, particularly if the infringement is found to be intentional.

I have found the bigger the company you are borrowing from, the more aggressive they may be in enforcing their rights. But again, look at the four fair use factors to determine if it might be a fair use and not an infringement. Since lawyers cannot give legal advice over the internet, it is not possible to say "don't worry about it" if that makes sense.

Best of luck, and see you at the top!! Attorney Steve®

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