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That's Not Fair

Posted March 20, 2013

by J. Barker

While at SXSW in Austin, Texas last week, I heard something from a panel discussing music licensing that was quite disturbing. A panelist told a roomful of independent artists something like “before you use part of another song or recording as fair use, you should consult an attorney.” The disturbing part was not the recommendation that an attorney be consulted. What was alarming is that he was implying the artists can start with the idea that their use falls under “fair use”, then simply verify that it does. Shouldn’t that panelist have instead implied that you should begin with the idea that you will need permission to use a part of a protected copyright and consult an attorney if you believe that use could fall under the fair use doctrine? It seems we’ve thrown around the fair use idea so much, with misdirected understanding of what it is intended for, that it has become a starting place for using songs over the idea of getting permission from the rights owners.

That same week, our office heard from a lady who is self-publishing a fiction book, saying that a book publishing company had told her that she could use up to 4 lines of a song in her book under “fair use”. Churches and other non-profit organizations frequently ask about making copies of music with the belief that their specific use of music is allowed under fair use. And I get asked all the time how much of a song can be used, that is, how many notes or measures or words, without needing to get permission or a license. These questions are all based on erroneous interpretations of the proper intent of the “fair use” doctrine.

Let’s set things straight. “Fair Use” was not mentioned in the 1909 Copyright Act. Until 1978, fair use was defined and applied by the judicial system as specific exceptions to the exclusive rights granted to the owners of copyrights. Congress realized the need to define this in the law, so it was included in the U.S. Copyright Act of 1976. However, the language of the current Fair Use statute is said to be illustrative rather than absolute, with the intent to restate, but not replace, the prior rulings determined by judges. Today’s courts regularly consider other factors as well.

The exact language in the Copyright Act (section 107) states fair use is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”. That’s it. So it’s a little difficult to justify those misdirected notions I described earlier as being allowed under this stated purpose.

The Act then lists four factors to be considered, under the umbrella of the above stated purpose, when determining whether a use is “fair”:

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

Fair Use is not intended as a substitute for the purchase of music, or to allow the copying of performances, workbooks, tests, or other copyrighted material in normal settings. It is not intended to allow a small but recognizable portion of music to be borrowed and included in a new work. Generally speaking, it is not intended as a method to circumvent the copyright law in order to use a copyrighted work for a standard use.

Fair Use is intended to be used as a “right” under certain, limited situations, and not as a “defense” against practical infringement claims.

Through recent decades, there have been many court cases involving a wide variety of confusing and unclear exceptions of Fair Use. Interestingly, most of these cases were infringement cases, and Fair Use was introduced into the case as an affirmative defense, many times with successful judgments allowing the use as “fair”. Personally, I believe the courts got some of those decisions wrong. But I realize anyone can argue pretty much anything in the court of law, and when it comes to complex matters like determining Fair Use, you just never know which side the final decision will support.

Without arguing over the fine points of precedent setting cases and decisions, my hope is that we can agree to look at Fair Use as a right, and not promote fair use as a method to cheat the system or defend a stupid act. Let’s promote the idea of respecting and using copyrights by starting with seeking permission from the rightful owners. If the use of an existing work really is for the purposes of criticism, comment, news reporting, teaching, scholarship, or research (which should obviously be known at the outset of such a use, and not brought up only when a defense is needed), then fair use is a fair option.

Otherwise….it’s just not fair.

John Barker
ClearBox Rights, LLC

“We want the facts to fit the preconceptions. When they don’t, it is easier to ignore the facts than to change the preconceptions.” – Mary Jessamyn West, U.S. Novelist

© 2013 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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