Mark Costello, The Daily Record Newswire
I used to teach a college music business law class and students — mostly musicians — often stated that it was permissible to incorporate part of a copyrighted recording into a recording the student was making, as long as the student used no more than seven seconds of the recording.
That’s fair use, right? Yes, but only if you release your recording on the 32nd day of a month, in a different solar system; or, if you get a really old judge with very bad hearing.
More reasonably, documentary filmmakers often ask me whether use of certain copyrighted works incorporated into their film constitutes fair use. So I perform a copyright/fair use audit of their film; and, like most things legal, the answer sometimes is, it depends. Since we’re keeping this discussion to two minutes, we’ll paint some of the underlying principals with a broad brush.
Copyright with a Broad Brush
Copyright law grants the owner of a copyright certain exclusive rights in a copyrighted work. Generally, if you use a copyrighted work in contravention of the exclusive rights granted to the copyright owner without a license, you are guilty of copyright infringement.
There are some exceptions, though, such as use of a copyrighted work in a classroom or using a song in a religious service (so if you write a song about the good Lord redeeming your wretched soul, and you’d like to make money on it, be sure to include a line about Elvis, Chevrolets and your dog, Buster, so the song has a chance of getting played outside of a church service.)
The Fair Use Exception
Fair use is another exception to the exclusive rights granted a copyright holder. Codified in section 107 of the copyright law, the law lists four non-exclusive factors to weigh when assessing fair use: The purpose and character of the use (i.e., commercial or non-commercial), nature of the copyrighted work, amount of the work used (i.e. part of it or all of it) and the effect on the potential market for the work. A classic example of fair use is usage of a copyrighted work in news reporting, teaching or scholarship or for criticism.
The fair use factors are fairly broad and fuzzy and the analysis is fact specific, so the outcome often is difficult to predict. For example, when a magazine excerpted between 300 and 400 words from President Ford’s yet to be published memoir as part of a 2,250 work article, the first court to hear the case said it was not fair use, the appeals court said it was fair use and the US Supreme Court held it not fair use.
Essentially, the Court held that using 300 – 400 words out of an entire book could find no protection under the fair use doctrine. (Had the memoir been written by one of the current candidates for office, the reasonableness of the Court’s decision might have had greater resonance since 300 – 400 words likely comprise the candidate’s entire vocabulary.) Excuse me while I make this article great again.
Fast forward a decade. The US Supreme Court held that the rap band 2 Live Crew’s recording of the iconic Roy Orbison song, Oh, Pretty Woman, was protected by fair use as a transformative parody of the song. The more transformative, the court held, the less weight given to the other fair use factors.
I sometimes am challenged to discern the melody in some inventive jazz arrangements of popular songs, which versions are nothing if not transformative, but I dare say they all pay the compulsory license fees for use of the copyrighted work. Imagine the Supreme Court listening to a rap song in 1994. You could have put any rap song in front of them and they’d have thought it was a transformative parody.
Fast forward to the 21st Century. In Perfect 10 v Google, the Ninth Circuit Court of Appeals held that Google’s use of thumbnail images appearing as part of search results constituted fair use because the usage was transformative. (Judges have tired eyes and would rather look at a tiny photo than at tiny print on a computer screen.)
Enter Google again. Google decides to scan tens of millions of books and make them available online. Some of the books are in copyright and some have expired copyrights. For books that are in copyright Google only makes snippets available but allows researchers to search the books for terms.
The Second Circuit Court of Appeals held that such usage of the works is transformative because it “augments” the public’s knowledge by making information “about” the books available without making a “substantial substitute” available to the public.
The thing to keep in mind about fair use is that it is a shield, not a sword. If you have to invoke fair use, it means you have been sued or are about to be sued. If you find yourself asserting fair use of music and you think you might be able to slip it past the judge, when you get to the podium, whisper. If the judge tells you to stop shouting, settle.
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Mark Costello is a partner with the law firm Boylan Code LLP and a struggling guitarist.
