When some players have playtested my game, they were concerned about the gem collecting sound effect and were convinced I simply ripped the sound effect from Spyro 2. However, the truth is that I hired a sound designer to make a soundalike sound effect from scratch.
Is this bound to get me in legal trouble? Does the law of soundalike music also apply to sound effects?
Potentially an issue, yes. Several types of IP law cover audio that sounds similar to other audio.
There is a non-zero risk that Insomniac or Sony may decide to sue you. If so, you would need a legal defense. There is a non-zero risk that a judge would agree with them, and issue awards to them against you or your company. There is a legal risk to nearly everything you do. If that is the ONLY sound you have which sounds similar, and if it really is a different sound, then I think the risk is inconsequential, but even so the risk certainly exists.
If you need help with a risk assessment and help estimating the costs of those risks, and help making a mitigation plan if you think those risks or costs are too great, then you need to discuss it with an IP lawyer.
If its close enough to be recognizable by others - its too close for comfort. Just stay away.
Is this bound to get me in legal trouble? Does the law of soundalike music also apply to sound effects?
Disclaimer: I am not a lawyer, though have had to deal with this particular issue.
Short answer is No. The law of "soundalike music" does not apply to sound effects. Music has 2 copyrights: the music itself (abstract notes on a page) and the actual recording. The IP protection for a sound effect is usually limited to the actual recording of the sound. There are a few cases where sounds have also been Trademarked. (one example is Lucas trademarked Vader's breathing sound:
If the sound hasn't been trademarked, then you are free to re-create it from scratch. Note, that if it were fairly iconic, I would make sure that you had a full accounting for the assets and process used to create it, to show that the actual sound recording was not used.
As long as your sound designer truly created the sound from scratch, you should be ok from a copyright perspective.
For this sound, I'd mention the concern and ask the sound designer to provide a list of the raw assets used to create the sound in case the issue ever comes up.
(Note that on an aesthetic level, I'd be worried that a sound from your game evokes a memory/emotion from a different game, and would ask for the sound to be redone for that reason, but that's a whole different issue).
Important note: if the sound effect itself can be represented in musical notation (for example, a 5-note fanfare plays when you pick up a gem), then music copyright may come into play, in which case you may NOT re-create the sfx (because it's actually music).
Is this bound to get me in legal trouble? Does the law of soundalike music also apply to sound effects?
Disclaimer: I am not a lawyer, though have had to deal with this particular issue.
Short answer is No. The law of "soundalike music" does not apply to sound effects. Music has 2 copyrights: the music itself (abstract notes on a page) and the actual recording. The IP protection for a sound effect is usually limited to the actual recording of the sound. There are a few cases where sounds have also been Trademarked. (one example is Lucas trademarked Vader's breathing sound:
If the sound hasn't been trademarked, then you are free to re-create it from scratch. Note, that if it were fairly iconic, I would make sure that you had a full accounting for the assets and process used to create it, to show that the actual sound recording was not used.
As long as your sound designer truly created the sound from scratch, you should be ok from a copyright perspective.
For this sound, I'd mention the concern and ask the sound designer to provide a list of the raw assets used to create the sound in case the issue ever comes up.
(Note that on an aesthetic level, I'd be worried that a sound from your game evokes a memory/emotion from a different game, and would ask for the sound to be redone for that reason, but that's a whole different issue).
Important note: if the sound effect itself can be represented in musical notation (for example, a 5-note fanfare plays when you pick up a gem), then music copyright may come into play, in which case you may NOT re-create the sfx (because it's actually music).
Thank you. :)
The original sound effect is a generic bling sound, so that is what I was striving for.
Depends on your risk aversion. Registration isn't required to qualify for TM protection, despite bschmidt's earlier claim to the contrary. The Lanham Act allows unfair competition claims based on "common law" trademarks, where the (in this case) sound effect is easily recognizable in commerce. But the question is whether an audience would be confused.
From a copyright angle, unless you (or the person you hired) intended to copy the sound, and the sound is distinctive enough to meet the originality test (it's not a sound that can be found in nature, for example), there's a limit on the level of copyright protection something like that can expect.
But typically the question for an indie isn't "would I win if they sue", it's "can I afford a lawsuit, regardless of how little merit their claim actually has?" So that's something to keep in mind.
As a sound designer in a previous life, I've used sound from sound banks that I had purchased (like Ric Vier's Sound Effects Library, or the Hanna-Barbera Sound Effects Library, or any of the Sound Ideas sound effects). They are sounds that, once purchased, are royalty free and can be used for commercial products following the specific licence purchased.
Having used those sounds quite a bit, I ended up actually recognising them in a lot of other movies and games. For example, I know I have used the metal sound of the tourniquet in the scene where Harry Potter first sees Padfoot in The Prisoner of Askaban. I have also heard that exact same sound somewhere in "The lords of the Ring", if I remember correctly, and a few other movies.
From what I have gathered, if the sound that was creted for you comes from one of those libraries, and the proper licencing has been respected, then it should be fine. The sound designer for Spyro 2 probably did the same.
In the end, there are only so many ways coins clattering to the floor can sound. Unless you are using a specific iconic sound (like Darth Vader's breathing, or R2D2's bips etc...), then from my understanding, you should be fine. Please note that I only give my thoughts as a former sound designer, and I haven't studied the laws around that.
Additionally, since it can be quite easy to tweak the sound just a bit to ensure it is actually different, I'd opt for the safer approach, and more creative and original approach, of making the sound as unique as possible.
