Backstage Quickies: Fair Use

Please take Note: HangTime is not a Lawyer. He does not play one on the Teley, Fairly well, or Fairly poorly. He would question anyone's sanity that would take anything he says as legal advice. Hopefully you will find this Fairly educational as well as Fairly entertaining, however anything dealing with Law or Government is Fairly complicated (they make sure of it ... it's called Job Security), and it is important to do your own research. If there is something you're not sure about, be Fair to yourself, please consult with a lawyer.

Also note that this article is based upon Copyright Law in the United States, other Countries DO vary.

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My band and I are working on a new song. We took this little bit from an Allman Brothers song, and built our song on top of that.

You realize you could get sued for Copyright Infringement if you do that, right?

Nuh-uh, we're doing it under Fair Use

What you're doing is most definitely _not_ protected under the Fair Use doctrine.

But we're only using a little tiny piece, that seems Fair.

That's not what Fair Use means

Well that's not Fair.

Fair Use, as defined in the United States, has a very particular meaning, but is also somewhat ambiguous, and left up to the courts to determine validity, on a case by case basis. I tend to think of Fair Use as being very clearly defined, but the definition being somewhat less defined.

That makes no sense, and definitely doesn't sound Fair!

Fair, or not, I'll try to give you some basics in a Crash Course sort of way...

The law states that "the fair use of a copyrighted work, [...] for purposes such as criticism, comment, news reporting, teaching [...], scholarship, or research, is not an infringement of copyright." Additionally, Parody is granted permission as Fair use. With the understanding that these broad terms define the types of allowed works, determining if a particular instance is an infringement must then be decided upon by a judge, and to do so they generally use 4 specific considerations. These, as defined by the law, are:

The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for, or value of, the copyrighted work.

In your case we don't even have to go so far as these considerations, using a section of someone else's song for your own isn't a Comment, Critique, News Report, Scholarly endeavor, Research or even a Parody of the original work. If the Copyright Holders decided to sue you, you would almost certainly lose in a court of law.

That's REALLY not fair.

Perhaps we need to turn this around. Suppose the Allman Brothers were to take a piece of your song. A song that you and your band mates had spent months writing and recording, and then wrote a new song based upon yours? Now that wouldn't seem very Fair would it?

No, I guess not.

Because it isn't. You as the Copyright Holder are the only person that can make copies or derivative works of the creations you've made, iow, the music to which you hold the Copyright.

Well yeah, but...

Now what Fair Use _might_ allow for, is someone to include a small section of your song on a web page in which they are writing a review.

Why do you say "might", you just said Comment, News, and Teaching were all allowed?!

I say "might" because remember, the final decision is up to a judge. Suppose instead of a snippet they posted the entire song as an Mp3 on their web site and did a news article on it. Is that Fair Use?

You're making my head hurt!

Don't panic, that's why we leave Law-Type-Things to Law-Type-People.

Still, as a _guess_, I would suggest that posting a complete Mp3 of your song, online, by someone else, even in the context of a review, probably does not fall under Fair Use. We can look at considerations #3 and #4: The amount of the Copyrighted work used (they're using the entire piece), and the affect upon the value of the original work (they're giving away what you intend to sell, thus they are potentially removing _all_ value from your song)

Okay, yeah, that's DEFINITELY not Fair.

If, OTOH, they posted 10 seconds of the Lead Guitar, and perhaps explained some of the fancy playing and digital effects that were used, that might very easily fit under Fair Use.

But I could still take them to court, right?

Well, yes, I guess you could, though in the case of the latter use, I suspect you'd lose and end up owing lots of money in lawyer and court fees.

Okay, it's a Fair guess that I don't want to do that.

Yeah.

Well, okay, what if we wrote new lyrics for the song that poked fun at the government, or maybe one of the people running for President? That would be Parody, so that's allowed, right?

That is not Parody, that is Satire.

Huh?

According to the New Oxford American Dictionary...

Parody: an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect
Satire: the use of humor, irony, exaggeration, or ridicule to expose and criticize people's stupidity or vices, particularly in the context of contemporary politics and other topical issues.

Another way to look at it is that a Parody of a song is a song making fun of itself whereas Satire is a song making fun of someone or something else.

I think I get that!

See it's not that complicated.

Now what about that bit you just copied out of the dictionary? Isn't it Copyrighted?

Indeed it is, however, my use falls squarely under Fair Use. I am reproducing a small fraction of the entire dictionary, 2 definitions out of thousands, and using it as a teaching aid.

But the dictionary folks could still take you to court, right?

For better or for worse, anyone can pretty much take anyone else to court over just about anything in this Country. In this case, unlike the example of you going to court, I would win, and the dictionary folks would wind up spending lots of money on lawyer and court fees.

For someone that's not a Law-Type-Person you sound pretty confident.

I know a guy that knows a guy...

And he's confident in Law-Type-Things?

Well, he knows a guy.

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