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While it is technically possible to obtain a compulsory mechanical license that allows you to produce your own cover recording of an existing song and redistribute the cover recording (even if the rights holders don't want to allow it), these compulsory mechanical licenses only cover standalone audio distribution, generally do not permit modifications to the melody or lyrics of the song, and there are also restrictions that would forbid the license holder from sub-licensing the recording for others to use. So it's very likely that this is an unauthorized reproduction and distribution of the Wii song and I'm 100% confident the rights holders of the original Wii music did not authorize this YouTuber to sublicense this version for other people to use in their videos.
It would be considered a derivative work under copyright law and I can confidently say this is not a situation that would qualify as fair use. This 'remix' is basically just the original Wii music with some minor alterations.
but in any case the point is that unless the rights holders complain, no action will be taken. I am actually a bit surprised they haven't already done so. Nintendo) to take action and submit a copyright claim. There is nothing indicating that YouTuber is authorized to redistribute the music or authorized to sublicense the music to others for use in their videos.Īs for why the video hasn't be taken down, it's up to the rights holders (e.g.
So, for example, if you were to include short clip(s) from the Wii music in your video for the purposes of providing your own review and critical commentary on the Wii music, this is an example where the use of the short music clips may be legally protected or defensible.Īnd no, the YouTuber who posted the music on YouTube and who is claiming it is free to use is mistaken as far as I can tell. The use of the copyrighted material would generally have to be limited, transformative, and fall under one of the categories that traditionally gets recognized as fair use such as parody or critical commentary/review. However fair use is limited in what it protects, it doesn't allow you to just incorporate portion(s) of random song(s) into your video for any reason. The only time you can use copyrighted material without seeking explicit permission from the rights holders is in use cases that are legally protected under fair use. So the simple answer is no, you cannot use the music without explicit permission from the rights holders otherwise your video could be taken down and it's even possible you could be sued.
The Wii/Mii music is protected by copyright and I cannot find anything to suggest the rights holders have released the music under a permissive license allowing free use or distribution.