Music Licensing: What is Considered Fair Use?

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When you’re incorporating music into training materials or a business presentation, you might wonder if fair use can apply to your situation.

“Fair use” is an exception to copyright protection (or, more accurately, a defense to a copyright infringement claim) that allows limited use of a copyrighted work without the copyright holder’s permission.

This might appear simple, but the truth is: fair use is very subjective. It’s so case-specific, in fact, it’s decided on a case-by-case basis. There might be situations or circumstances where using music in training materials has some credible fair use arguments. However, those situations are likely to be very narrow.

If you’re going to rely on fair use, the bottom line is, you need to factor in how much risk you’re willing to take.  Why? Because some uses are riskier than others and the risk of a failed fair use defense is copyright infringement.

Are educational trainings & presentations grounds for ‘fair use’?

Let’s imagine you’re creating a training presentation for your coworkers and you want to use music within it.

In this situation, you may need to obtain a license to use the music. There are some exceptions to copyright protection that allow uses in academic settings, such as the TEACH Act. Signed by President George W. Bush in 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act is the product of discussion and negotiation among academic institutions, publishers, library organizations and Congress. But, the guidelines for applicability are very specific.  Although teaching is a favored use under fair use, exceptions like those under the TEACH Act typically apply only to non-profit educational activities and not to activity that has a primarily commercial purpose (such as a business providing training to its employees).

Using myself as an example, I often give presentations on rights clearance matters. If I’m talking about a lawsuit involving a claim of copyright infringement involving music, I’ll play a short clip of each selection so the audience can hear musical selections’ similarities.  This is a classic fair use case and I’m comfortable in relying on it for this purpose.

What is ‘incidental use’? Is that considered fair use?

Pretend you’re a documentary filmmaker, and music is playing in the background at an event you’re covering.  When you’re running your camera and you pick up copyrighted music, do you need a license?

As with many rights clearance questions, this often requires a risk assessment.

There are certainly people who argue – and there are credible arguments to be made – that the incidental picking up of the music in the background during a documentary film can qualify for fair use.  When you’re talking about incidental music picked up, you’re more likely to qualify for fair use if you’re not focusing on that music, it plays for a short period, and it’s in the background.

If the risk seems too high (for example, how prominent the song is, or how long it’s audible in the video), filmmakers can consider alternatives. These could include blurring out any copyrighted materials by removing the audio sound for any unlicensed music that is picked up.

Does entertainment vs. news make a difference in fair use?

Newsgathering is an example of the types of activity that may be fair use under the Copyright Act, and is more likely than entertainment content to be deemed a fair use. Just because programming is news doesn’t give it an automatic fair use ticket – a fair use analysis is still required. On the flip side, just because your use falls outside the types of use specifically listed in the Copyright Act doesn’t mean it can’t qualify for fair use.

Fair use comes down to individual, specific circumstances for each use.  But remember, when you use music within a company setting or for business purposes, it’s likely that your company’s use of that music requires a license.

Learn more about music licensing at work. Listen now to CCC’s on demand webinar with Joy Butler: “Using Music at Work: Balancing Creativity and Compliance.”

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Joy Butler

Author: Joy Butler

Joy R. Butler is an attorney and author with over twenty years of experience counseling clients on business, licensing, technology, and media matters. Through her Washington, DC-based private law firm practice, she provides transactional and advisory services primarily to mid-market companies and small businesses. Ms. Butler excels at explaining complicated legal issues in understandable terms and proposing practical solutions to business problems. Her writings relevant to music licensing include The Permission Seeker's Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions, recently updated and expanded for 2017. She has also authored books on internet law and contests and sweepstakes law and regularly blogs on intellectual property, media, and licensing issues at www.GuideThroughtheLegalJungleBlog.com Ms. Butler is a graduate of Harvard Law School and Harvard College.

For inquiries related to this blog, email: sweston@copyright.com