Fair Use of Music in Clips

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This article was originally published at page 18 of the July 2019 issue of XBiz World Magazine and at XBiz online.

Copyright protects the rights of creators of artistic works including (without limitation) music.  This means that typically, only the copyright holder may reproduce or synchronize a song, which includes, performing of the song, incorporating a song as background music, or using the song as a soundtrack, etc. in a video.  If you are a clip artist, you may have found one or more of your videos removed or blocked from digital content sharing services (clip sites, tube sites, social media, etc.) after claims of infringement of copyright on included music.  Let’s dig in here to what’s going on and what your options are.

Music is covered by copyright in multiple ways.  The composition (i.e. melody and words) is subject to copyright, and a recording of the song (e.g., the radio version sung by a big pop star) is subject to a separate copyright.  These copyrights may be owned by the same person or entity, or by different ones.

These separate rights make for multiple ways to become entangled in an infringement claim.  For example, if you are singing a song in a clip, the owner of the copyright in the musical composition could make a claim.  If you are dancing to a recording playing in the video, the owner of the composition as well as the owner of the recording could make claims.

“Fair use” is an exception to copyright law.  It allows a third party to use copyrighted material of another under particular circumstances.  Fair use is a complicated topic, and requires a lot more words than we have here to fully discuss it.  In summary, though, keep in mind the following.  In order for a use to be considered fair, it must be transformative – change the nature of the song in such a way that it has new expression or meaning.  It must be for educational, news reporting, commentary, parody, or other specific themes outlined by law.

For a use to be fair, the amount of the song used must also be reasonable (usually, the less used, the better).  Unfortunately, there is no hard line delineating how much is reasonable.  If you’re using a 20 second portion of a 4 minute song, in your 15 minute clip, it is possible to be a fair use.  If you’re using a full 4 minute song in a 5 minute clip, that becomes more questionable.  This is especially true because a person can play your video to hear the full song instead of buying the original recording of the song, which denies the copyright holder of the profit it would have otherwise made.

On the topic of profit, money always matters…  Use of copyrighted music in a clip made for charitable purposes is more likely fair than in a clip made to earn revenue for a private interest.  For example, if a clip is made for entertainment of users from which you as the clip artists pockets the revenue, the use is less likely fair than a clip made for a non-profit public-interest purpose such as to make a statement on sex worker rights.

Under copyright law, in certain instances, digital content sharing service providers can be held liable for the infringement of third-party users on their websites.  This means that a service provider can be responsible for a user uploading infringing content to its site.  However, the “Digital Millennium Copyright Act” (DMCA) provides a safe harbor.  In short, if the service provider swiftly removes the content after receiving a complaint in proper form from the copyright holder, the service provider will usually not be liable for the copyright infringement of the user.

In light of the uncertainty of what actually constitutes fair use, digital content sharing service providers are afraid of consequences if they don’t remove content when there is a copyright infringement claim.  The DMCA incentivizes such services to remove content, or block it in the US, following a complaint even if there is potentially fair use.  This is because the DMCA relinquishes service providers of potential liability in the case that it’s not fair use.  So, service providers think ‘why risk it?’

For clip artists, this is a very frustrating set of realities.  It’s also going to get even more difficult because of the newly minted “Article 17” (formerly known as “Article 13”) of the EU Copyright Directive, which changes the game in Europe.  In Europe, “fair dealing” is similar to fair use in the US.  In short, Article 17 requires that within the next two years, member states of the EU pass laws that not just require digital content sharing service providers to remove content in response to a complaint , but that they actually prevent infringement from happening on their websites altogether.  This is definitely something for clip artists to watch.

So, the “million dollar question” becomes how can a clip artist avoid removal or blocking of his or her videos?  I understand that it doesn’t sound optimal because sometimes you want a popular song, but consider using stock music you can license from online services.  In some cases, you may have to pay a small fee, or in others, the songs are free.  Just check the terms of use or the “license” ahead of time for how you can use the music, and to make sure that it doesn’t prohibit use in pornographic content.

Alternatively, you can try to use the music in a way that potentially constitutes fair use.  If you’re good at audio editing, you could make a mash-up of portions of various songs.  Using 15 second pieces of 10 songs, for example, might be considered transformative and fair.  If you’re creating a parody, for example, by singing the melody of a copyrighted song replacing the original words with alternate words that parody the song, that might be considered a fair use.  If you play a 3 minute song in small increments (for example, 20 seconds at a time) and give commentary on the song at each interval, that might be considered a fair use.  Although these ideas maybe don’t sound sensual in theory, I’m sure talented clip artists could find ways of making them sexy on film!

If you do use portions of copyrighted music, and your content is removed or blocked in response to a DMCA complaint, you have the opportunity to respond to try to get the content reinstated.  You can reply with what’s called a “counter-notice” if you believe your use is fair or that the removal/blocking was wrong for another reason.  The service provider may repost or unblock your content, but even if it does, this may lead the copyright holder to sue you in court for infringement, exposing you to possibly having to pay money damages.

Fair use is a complex concept to work within the confines of.  The fair use exception to copyright was developed to balance the goal of protecting copyright holders with the goal of encouraging free dissemination and expression of ideas.  So, keep creating…  Just try as much as possible to avoid using copyrighted music (and other copyrighted materials) to keep your path clear as you work your way to higher visibility and profits in the clip world!

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