Using a copyrighted song without permission in a video, film, advertisement, or other media can lead to serious legal consequences. Copyright law gives the creator of a song the exclusive right to control how their work is reproduced and distributed. Using a copyrighted song without a proper license or permission constitutes copyright infringement and can result in legal action against the infringing party. However, there are some exceptions and defenses that may apply in certain situations. This article will examine what copyright is, what constitutes copyright infringement, penalties for infringement, defenses against claims of infringement, and how to legally use copyrighted music.
What is copyright?
Copyright is a form of intellectual property law that gives creators exclusive rights over their literary, musical, dramatic or artistic works for a limited period of time. This allows creators to control how their works are reproduced and distributed, enabling them to benefit financially from their creative efforts.
In the United States, copyright protection arises automatically once a work is fixed into tangible form, such as written down or recorded. Registration with the U.S. Copyright Office provides additional benefits, like the ability to file infringement lawsuits.
What is protected by copyright?
Copyright protects original works of authorship, including:
- Songs
- Recordings
- Films
- Photographs
- Books
- Paintings
- Sculptures
- Choreographic works
- Software
Ideas, concepts, facts, and processes themselves cannot be copyrighted, only the original expression of those things in tangible form. Names, titles, short phrases and slogans are also not subject to copyright.
Exclusive rights granted by copyright
Copyright holders have the following exclusive rights:
- Reproduction – Making copies
- Distribution – Selling, renting, lending or otherwise distributing copies
- Public performance – Playing a song publicly
- Public display – Showing a video or image publicly
- Derivative works – Making a remix, cover, translation, etc.
Using a copyrighted work in one of these ways without permission infringes on the copyright owner’s exclusive rights.
What constitutes copyright infringement?
In general, using all or any significant portion of a copyrighted work without permission infringes the copyright. Infringement does not require intent or even knowledge that the material is protected by copyright. Accidental or unknowing infringement is still infringement in the eyes of the law.
Here are some examples of copyright infringement:
- Including a full or substantial portion of a copyrighted song in a YouTube video without a license
- Sampling a portion of a copyrighted recording in another song without permission
- Syncing copyrighted music to visual media like commercials or films without a sync license
- Covering or remixing a song without a mechanical license
- Using a photograph found online in a book without permission from the photographer
- Downloading copyrighted songs or films from illegal file sharing sites
Even if proper credit is given, use of a copyrighted work still requires permission in most cases. Merely providing attribution does not suffice to make use of a copyrighted work legal.
Penalties for copyright infringement
Copyright infringement can lead to serious civil and criminal penalties:
Civil penalties
In civil court, common penalties for copyright infringement include:
- Injunction – Court order to stop infringing activity
- Impounding and destruction of infringing articles – Seizure and destruction of infringing works
- Actual damages and profits – Money damages to compensate for losses and disgorge improper profits gained from infringement
- Statutory damages – Damages set by law, ranging from $750-$30,000 per work infringed, up to $150,000 for willful infringement
- Attorney’s fees – Payment of legal costs associated with pursuing infringement claims
Statutory damages are a particularly powerful remedy, as courts can award substantial damages even if the copyright owner cannot prove actual financial loss from the infringement. Courts also have discretion to increase statutory damages up to $150,000 per work for willful infringement.
Criminal penalties
Willful copyright infringement for commercial purposes or financial gain is a federal crime that can result in the following criminal penalties:
- Up to 5 years in prison
- Fines up to $250,000 per offense
- Restitution to copyright holder
Criminal charges for copyright infringement are rare and usually reserved for large-scale commercial piracy operations. However, criminal copyright laws still create the potential for serious jail time in addition to civil liability.
Defenses against copyright infringement claims
While unauthorized use of a copyrighted work often constitutes infringement, there are some defenses that may apply:
Fair use
Fair use is a legal doctrine that permits limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship or research. Four factors courts consider in determining fair use are:
- The purpose and character of use
- The nature of the copyrighted work
- The amount used in relation to the whole work
- The effect on the potential market for the work
Documentary filmmakers, for example, can claim fair use for short clips of copyrighted songs and videos used for commentary. Parody, like Weird Al Yankovic’s humorous song rewrites, is another well-established form of fair use. However, fair use requires using only the amount necessary for the purpose, so using an entire copyrighted work verbatim would not qualify.
De minimis use
Under the legal principle of de minimis non curat lex (“the law does not concern itself with trifles”), trivial uses that are so minor as to fall below the threshold of copyright protection may be permissible. For example, a few unrecognizable bars of a song playing faintly in the background of a scene may qualify as de minimis use. However, more substantial uses do not qualify for this defense.
Lack of substantial similarity
For infringement to exist, there must be substantial similarity between the copyrighted work and the allegedly infringing work. If only trivial or fragmented similarity exists, there may be no viable copyright claim.
Implied license
An implied nonexclusive license to use a work may arise based on the relationship, conduct or dealings between parties. For instance, a photographer who willingly sends sample photos to a magazine may implicitly grant license to publish the photos based on industry custom and prior dealings.
Independent creation
If you independently create a work that happens to be similar to a copyrighted work, this does not constitute infringement. Truly independent creation is a complete defense. However, if there is evidence of access to the existing work, the similarities may undermine a claim of independent creation.
Expired copyright
Copyrights have limited duration. Once a work’s copyright term expires, the work enters the public domain and can be freely used without permission. In the U.S., most works are protected for 70 years after the death of the creator.
Authorized use
Naturally, if your use of a copyrighted work is properly authorized through consent of the rights holder or a valid license, this provides a complete defense against infringement claims. Ensure proper licenses are obtained where required.
How to legally use copyrighted music
For those looking to avoid copyright disputes, here are some tips on legally using copyrighted songs and recordings:
Obtain licenses
Licensing copyrighted music from companies like BMI, ASCAP and SESAC is required for many public performances and broadcasts. Venues, radio stations, podcasts and other media usually obtain blanket licenses to legally play songs from the rights organizations’ extensive repertoires.
Seek direct permission
For uses not covered by a blanket license, you can contact copyright holders directly to negotiate permissions. Getting signed licenses for synchronization, mechanical rights, sampling and other uses is advisable to avoid infringement liability.
Use music services
Services like Artlist, Epidemic Sound and Soundstripe offer a wide selection of songs available for license in exchange for a subscription fee. This allows use of their catalog music in videos, podcasts and other projects without infringing copyrights.
Use stock music
Royalty-free stock music and songs that anyone can license and use without infringement concerns are available on sites like AudioJungle and Pond5. While selection is more limited than full copyrighted songs, stock music provides a legal and affordable alternative.
Use Creative Commons music
Many musicians release songs under Creative Commons licenses, which expressly permit certain uses without needing further permission. CC-licensed songs can be legally reused provided the license terms are adhered to, such as attributing the artist.
Commission original music
Hiring composers to create original, customized songs and scores that you fully own the rights to avoids copyright issues. Though more expensive than licensing existing music, this option gives you the most creative control and ownership.
Conclusion
Unauthorized use of copyrighted songs can lead to serious legal consequences, including civil lawsuits and criminal charges in severe cases. However, options are available to legally use music by obtaining proper licenses, utilizing permissible alternatives like stock music, or creating original works. Being mindful of copyright law and creators’ rights allows you to incorporate music into videos, films, and other media in a lawful manner. With the proper licenses and permissions where required, you can use copyrighted songs and recordings without concern over potential copyright disputes.
