Copyrighted Music, Personal Use, and not-for-profit Video Games?
<p>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.</p>
<p>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?</p>
<p>I am located in Australia, and itch.io operates out of the USA.
Thanks.</p>

<blockquote>
<p>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?</p>
</blockquote>
<p>There are some &quot;private use&quot; exemptions in <a href="https://www.legislation.gov.au/Details/C2019C00042" rel="nofollow noreferrer">Australian copyright law</a> but they have some fairly narrow conditions.</p>
<p>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.</p>

<p>You are distributing the music to other people, so this doesn’t look like personal use at all.</p>
<p>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.</p>
<p>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.</p>
<p>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 &quot;open source&quot; license, then you give <em>everyone</em> 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.</p>

<p>As gnasher729 says, it's clearly not personal use. I'd like to consider the idea that it's not-for-profit.</p>
<p>If you're using itch.io, there seems to be no way to ensure you would not be paid for the game. <a href="https://itch.io/docs/creators/pricing" rel="nofollow noreferrer">Itch.io's website</a> tells us :</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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.</p>

copyright music video-games