Music Copyright Guide

Fair use is defined in Section 107 of the Copyright Act, but I use “defined” very loosely because it is completely up to interpretation. Basically, under certain circumstances, it is ok to use a work that is still under copyright, if it can be argued adequately in court as fair use. Below are four factors that courts use to determine whether something is fair use, but even these are up for interpretation. Don’t take these things as rules, but rather as guidelines. In different circumstances, some of these factors will be weighed more heavily than others!

A use of copyrighted material can be considered a fair use if:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”

• This covers a few aspects. One of the basic questions is: are you going to make money off this use? Often, nonprofit or educational uses are more likely to be considered fair uses, but not always. The “purpose and character of the use” also includes whether the work is transformative. This is a bit confusing, but if you are going to use a work in a way that critiques, redefines, or adds to the work with a different purpose, thereby adding meaning to the original work (or transforming it by adding your own contribution to it), it can be considered a fair use. The best example of fair uses that are transformative are musical parodies. Weird Al Yankovic doesn’t need to license the music he is parodying because he is taking the original song and changing some aspect of it for the purpose of commentary. This changes the meaning of the original song, and is therefore considered a fair use.

“(2) the nature of the copyrighted work”

• Some works are easier to argue as fair use simply because of the type of information they contain. Factual items such as biographies or historical books are easier to argue fair use for because they contain facts, which cannot be copyrightable, though the expression of those facts can be. Creative works like movies or original compositions are harder to argue a fair use, simply because they are more creative. This also covers whether or not the work is easily accessible. If a work is out of print or otherwise unavailable, fair use is easier to argue.

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole”

• The smaller a portion of the work that is used, the more likely it is a fair use, though this is not always the case. A very important question regarding this is what the “heart of the work” is. Simply stated, are you spoiling the work for other listeners or taking the part of the work that is central to the work? The rationale for this is related to the fourth factor, namely that people may not be interested in consuming the remainder of the work, if they can get the main part of the work from a quote, regardless of how long or short the quotation is.

“(4) the effect of the use upon the potential market for or value of the copyrighted work”

• This is often the most heavily judged, but is very critical in determining whether yours is a fair use or not. Basically, are you taking away money from the original creator since people would consume your version instead of the original? If so, it is less likely to be a fair use

These are quite complicated and if you're concerned about whether or not your use of a copyrighted work is considered fair use or not, it's always a good idea to contact a lawyer. This guide is not legal advice, so please contact a lawyer for more specific questions.

You can also test your understanding of fair use by taking the two quizzes at the end of this guide under the "Test Your Knowledge" tab on the left.