Music use often falls under the fair use doctrine, allowing portions of copyrighted songs to be used without permission in certain contexts. Determining if a particular music use qualifies as fair use requires a careful balancing of four factors.
The Purpose and Character of the Use
If the music is being used for a transformative purpose, such as parody, criticism, commentary, or news reporting, this weighs in favor of fair use. Simply replaying a song without adding new meaning does not qualify.
The Nature of the Copyrighted Work
Using a more creative work, like a song, is less likely to be considered fair use compared to a factual work. Published works are also given more protection than unpublished works.
The Amount and Substantiality Used
Using a small portion of a song, such as a few notes or lines, is more likely to be fair use compared to using the entire song or the “heart” of the work. There is no set time limit, so the amount used depends on the context.
The Effect on the Market
If the use negatively impacts the market value of the original work or the copyright owner’s ability to profit from it, this weighs against fair use. However, transformative uses often do not replace the original work in the market.
Examples of Fair Use of Music
Here are some examples of music uses that may qualify as fair use:
- Quoting a few lines of a song in a book or paper for commentary
- Parodying a song for comedic effect
- Using a clip of a song in a documentary for illustrative purposes
- Playing a short part of a song in an educational YouTube video
Examples of Unfair Use of Music
Here are some examples of music uses that would likely not qualify as fair use:
- Using an entire song in a YouTube video or podcast
- Adding songs to a mixtape without permission
- Using a song in a commercial advertisement
- Covering a song and selling it without obtaining a compulsory license
Obtaining Music Licenses
For music uses that don’t qualify for fair use, you need to obtain the proper licenses. Common music licenses include:
- Synchronization (sync) license – to use music in a video, film, ad, etc.
- Master use license – to use the sound recording itself
- Print license – to print lyrics, transcriptions, etc.
- Public performance license – to play music publicly
How to Apply the Fair Use Factors
Evaluating fair use requires a balanced application of the four factors above. While helpful, the examples provide general guidance and do not determine legality for any specific use. For uses other than undisputed fair uses like quotation, it is wise to consult an attorney if you have any doubts.
Conclusion
Fair use allows portions of copyrighted music to be used without permission in certain contexts like commentary, parody, criticism, and news reporting. However, uses that simply replay songs without adding new meaning are unlikely to qualify. Carefully considering the fair use factors and obtaining licenses when appropriate allows you to share music legally.
