You may have heard of "fair use," a copyright provision that permits you to use 10, 15 or 30 seconds of music without copyright obligation. That is, you understand that you can use a short section of a song without paying a fee.
As a business owner or entrepreneur looking for bang-for-your-buck advertising, you know that a short clip of a high-profile hit is a powerful attention-getter. You may have heard of "fair use," a copyright provision that permits you to use 10, 15 or 30 seconds of music without copyright obligation. That is, you understand that you can use a short section of a song without paying a fee. Yet, you're wondering how exactly this works.
The short answer is that it doesn't work. The 30-second fair use rule is a myth, particularly for commercial use, such as with a radio or television ad. Copyright law is complex, and even when your fair use reasoning is valid, there are other circumstances that may still prevent you from using the music you want without obtaining permission.
Understanding Fair Use
One of the first things to understand about fair use is that it's not a law or an exception to copyright law. It's a defense used if you're named in a copyright infringement claim. This defense, when successful, allows the limited use of a copyrighted work without obtaining the copyright holder's permission. Every infringement claim considers fair use on a case-by-case basis.
What fair use is not is a blanket standard that covers every situation where a defendant claims this exemption. When you rely on fair use reasoning, you'll need to accept some level of risk.
Researching Fair Use
There are two important bellwether questions to ask about a copyrighted work for which you intend to claim fair use.
Is the work protected by copyright?
Was the work obtained from a legal source, in a lawful manner?
If your answer is yes to both questions, then fair use may be possible, however this is only the first step in a chain of measures that verify fair use. Answering "No" to question one may mean that fair use doesn't apply because a work is in the public domain. You must be careful here, though, because copyrights apply to both composition and recording. So Beethoven's Fifth Symphony may be a public domain composition, but a recording made by an orchestra last year is still actively protected by copyright. Answering "No" to question two means that, even if your use of a work is consistent with fair use, taking a copy from an unapproved source invalidates fair use.
The Copyright Act Criteria
The measures against which use of a work may be deemed fair are:
The nature of the work: Quoting factual work, such as a history book, for example, may be fair use. Since music is interpretive, it's more likely to be protected.
The amount of use: This is where the 30-second rule is debunked. Small portions of a work may be permitted as fair use, while the entire work is not. However, there are no specific guidelines for infringement.
Market effects: If your use interferes with the marketability of the original work, you'd likely be ruled against in a fair use claim. While it could be argued that a fair use criticism might decrease sales and affect the market value of the original, this criteria looks for fair use becoming a replacement for the original work.
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