It has never been easier to infringe copyright, through the sharing of content, and production of new media. As performers this is something which goes both ways, as we understandably want to be reimbursed for our work – however we must also be aware of crossing the line with material we add to our productions.
Currently I’m preparing content for a new website for William, and want to publish recordings of the stories I read for bedtime. Not wanting to tread on the publisher’s toes, and end up in court, I’m carefully trying to obtain permission from the publishers. However, to my frustration even identifying the copyright holder – for example of the “Mr Men” stories – is much harder than it seems. In this case I haven’t yet been successful, so would appreciate any information. In another case I have a mail floating around the publisher, which one day I’m hopeful they’ll reply to. Meanwhile, you’ll have to wait to hear these.
My thanks to voiceover legal beagle Rob Sciglimpaglia for his answers to my questions, and to Ginny Culp for allowing me (with full authorisation – yes, I have written permission, in triplicate!!!) to republish her recent excellent article on this topic, which should clarify any remaining confusion on the topic.
Music Copyright and Fair Use
by Ginny Culp on February 12, 2012
It’s important to understand first of all, that only a lawyer can give legal advice. And today there’s much “opinion” circulating the internet (and social networking sites) that is simply not fact. When you’re seeking advice on whether or not someone else’s material is safe to use, be careful where you receive your advice from. What someone THINKS is fair use is often opposed by the copyright holder. Remember that a copyright holder has the EXCLUSIVE RIGHT to determine and grant permission and licensing for their music creation. These laws exist to encourage the creation of further works of art, and to protect the livelihood of those who create them.
Here are some definitions:
Public Domain Works are those for which the copyright has expired, or were written prior to 1922.
Fair Use is a legal term and the Fair Use Act is complicated. Its conditions are difficult to interpret, but they mainly apply to using a portion of something for educational or review purposes. Only a copyright laywer or the the United States Copyright Office can make the final decision on whether or not the fair use act applies. Chances are, they do not apply in the case of using copywritten material in your YouTube videos.
Parody vs. Satire: Generally speaking if your work is parody, judges do take this into consideration if your situation escalates to a legal challenge. Parody is a situation where a small portion of work was used (in a TRANSFORMATIVE work) and its purpose was to ridicule, mock, comment on, or trivialize an original work. Satire is NOT parody.
Case law includes an example in 2007, the 9th Circuit Court of Appeals denied a fair use defense in the Dr. Seuss Enterprises v. Penguin Books case. Citing the Campbell v. Acuff-Rose decision, they found that a satire of the O.J. Simpson murder trial and parody of The Cat in the Hat had infringed upon the children’s book because it did not provide a commentary function upon that work. The book was considered to be satire rather than parody because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. The author’s work was nontransformative and commercial.
This is the definition of “copies” under the United States Copyright law:
”Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ”copies” includes the material object, other than a phonorecord, in which the work is first fixed.
After reading this definition, an individual may interpret that if there is no physical COPY of the song, that no copyright laws have been broken if you add a commercial recording to your video or put it on your web site. But that’s simply not true and here’s why: to transmit the song (for example FTP) onto your web site, or to create a video using a commercial recording, you had to first create a COPY of the original recording. This copy is a digital file. Note the portion of the clause: by any method now known or later developed.
With the increasing use of music on the Internet, the two dimensional text and small graphics web site is quickly becoming the 8-track tape player of the Internet. As creativity and capacity catch up with each other, many of tomorrow’s web sites will be increasingly more inventive, utilizing many different media. This presents video producer, the designer of the site and of course the lawyer for each, with interesting new challenges in order that the rights of all parties be protected.
There are several rights that are initially owned by the creator of the music and the recording embodying that music. With music, it is important to note that separate rights exist in the music and the recording of that music. Think of these as the “sheet music” and the “recording that you can listen to”. Obtaining permission (licensing) to use music, you need permission from both copyright holders. Although they CAN be the same individual or company, generally speaking they are not. (Consider that there have been a lot of remakes of popular songs, including remakes by the original artist.)
Determining Factors of Fair Use:
Judges generally consider five points when determining fair use.
- The transformative factor: The Purpose and Character of Your Use. When taking portions of copyrighted work, ask yourself the following questions:
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
- Transforming media fro audio to video is not transformative.
- The nature of the copyrighted work: factual works such as biographies have more leeway than fictional works such as plays or novels
- The amount of the work used: There isn’t a fixed number of seconds or notes. But even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work
- The effect of the use upon the potential market: Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.
- Good or Bad: Sometimes fair use cases contradict one another or seem to conflict with the rules. Fair use involves subjective judgments and are often affected by factors such as a judge or jury’s personal sense of right or wrong, or the spirit of the law. For example, offensiveness is not a fair use factor. But be aware that a morally offended judge or jury may rationalize its decision against fair use.
Examples that are NOT Fair Use of music:
- Mash-ups and remixes of another person’s recording
- Digital Sampling to create loops or clips
- Using the recording in your video production as the background music track (without licensing)
- Assuming that because YouTube hasn’t removed the video that it’s okay
- Downloading songs is not a fair use. A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Note: Since numerous sites, such as iTunes, permit listeners to sample and examine portions of songs without downloading, the court rejected this “sampling” defense.
- Absence of commercial gain does not constitute fair use.
- Well if others are doing it … I can too
- Acknowledge the Source Material
- Using a Disclaimer
“In the end, fair use is not a referendum on fairness in the abstract …” (Capitol Records Inc. v. Alaujan, 2009 WL 5873136 (D. Mass., 7/27/09).)
Common Misunderstandings About Fair Use:
Acknowledging the Source Material
Some people mistakenly believe it’s permissible to use a work (or portion of it) if an acknowledgment is provided. For example, they believe it’s okay to use a song in a video as long as the name of the artist’s name is included. This is not true. Acknowledgment of the source material (such as citing the copyright holder) may be a consideration in a fair use determination, but it will not protect against a claim of infringement. In some cases, such as advertisements, acknowledgments can backfire and create additional legal claims, such as a violation of the right of publicity. When in doubt as to the right to use or acknowledge a source, it is safest to seek the permission of the copyright holder.
Adding a Disclaimer to Your Video
A disclaimer is a statement that “disassociates” your work from the work that you have borrowed. For example, if you produce a a video using a song from Lady Gaga, you may include a disclaimer such as, “This video is not associated with or endorsed by the Lady Gaga.” Will it help your position if you use a disclaimer? In close cases where the court is having a difficult time making a fair use determination, a prominently placed disclaimer may have a positive effect on the way the court perceives your use. However, generally a disclaimer by itself will not help. That is, if the fair use factors weigh against you, the disclaimer won’t make any difference. There is a case example involving a Seinfeld trivia book, the publisher included a disclaimer that the book “has not been approved or licensed by any entity involved in creating or producing Seinfeld.” Despite the disclaimer, the court stated that the use of the Seinfeld materials was an infringement, not fair use.
If it’s YouTube, then it’s okay
YouTube isn’t there to assist you in sorting out your legal mess if you’re sued. YouTube faces constant legal challenges. Here are some examples of YouTube Law Suits. The details of the contract between UMG and YouTube over use of a “Content Management System” remains secret, but the ability to remove videos from YouTube could become controversial and troublesome quickly. There is little information about how this will affect your video long term, and remember that if UMG (Universal Music Group) doesn’t own the video to which one if its songs is contained within, then they DO have the right to take it down. Bear in mind also, that the UMG deal does not affect any other company (for example Warner Brothers), and that deals can be renegotiated down the road, in which case your video could end up being the loser. Depending on the circumstances, the audio for your video might be muted, or the video could be blocked entirely.
The article, “Music Copyright and Fair Use” was written by Ginny Culp, and first published on her blog, “Ginny’s Audio Blog” on February 12, 2012 at http://www.ginnyculp.com/audioblog/2012/music-copyright-and-fair-use/
About Ginny Culp
Ginny Culp is the composer to the internet marketing superstars,and is the music studio behind thousands of successful product launches.
Her high impact orchestral background music and sound effectsare in use in millions of online multi-media productions. Togetherwith licensing that’s tailor-made for internet marketers, combined with audio that’s optimized for online use, many say Ginny is the best in her field.
“Music Copyright and Fair Use” – the original article
Ginny Culp – personal website