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The other argument the EPA could make here is that of fair use. For that to pass legal muster, you'd likely need direct permission from the original copyright holder for the composition, he told Ars.
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Even the kind of compulsory cover license usually used to release commercial cover versions of other songs likely wouldn't cover a derivative work like a game soundtrack, according to Cornell Law Professor James Grimmelmann. Using a cover version doesn't put the EPA in the clear here, of course. Instead, it sounds a bit like a MIDI-style cover version of the song, which is a genre that should be familiar to anyone who frequented certain corners of the Internet since the late '90s.
While the Recycle City Challenge theme is strikingly similar to the Yoshi's Island DS song in question, it doesn't seem to be a direct rip of the actual recording from the original game. But there is at least some question as to "the extent permission was necessary in this instance," as the EPA spokesperson put it. It seems extremely unlikely that Nintendo offered permission or sold a license for a minor track from an aging Nintendo DS release to be used in a relatively unknown US government Web game (Nintendo has yet to respond to a request for comment from Ars Technica).
"We are looking into whether the contractor received permission to use the music, to the extent permission was necessary in this instance." Can they do that? "The Recycle City Challenge game was created for EPA by a contractor," an EPA spokesperson told Ars. The Yoshi's Island DS "Underground" theme
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Perhaps not coincidentally, a file named "yoshidsunderground.mp3" containing a copy of the song in question was in a music subfolder on the EPA website (as cataloged in this Internet Archive link) until earlier today. You can still hear it in this Internet Archive copy of the site, though, and compare that directly to the same song on the Yoshi's Island DS soundtrack. The music, which played in a version of Recycle City Challenge accessed by Ars as recently as this morning, has since been removed from the live version on the EPA's website. But yesterday, fan site Nintendo Soup was among the first to publicly notice that the Web game used a looping version of Yoshi's Island DS' "Underground" theme in the background.
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Recycle City Challenge is an extremely simple educational Web game that asks players to answer basic questions about how to reduce waste and energy use. A flash game available on the Environmental Protection Agency website since at least early 2017 made surprising use of copyrighted music from Nintendo's 2006 game Yoshi's Island DS.
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