© C in a Circle - Playing Fair

Whether you call it sampling, borrowing or stealing, the only thing for certain about the fair-use “rule” is that it doesn’t exist.

Posted in Songwriter 101 on January 18, 2005 by Gary Roth

No matter how creative songwriters and composers are, inevitably there comes a time when they want to use a small part of someone else’s song in their own work. Perhaps it is to pay tribute to another writer or work or because what they have created themselves just seems to cry out for a piece of the other song. Whether it’s called sampling, borrowing or stealing, can a writer legally use a few bars of music or some lyrics from another copyrighted song and incorporate them into his or her own, or does the taker need permission from the publisher of the borrowed work?

Using a portion of a copyrighted work without having to get permission first is called “fair use.” Probably more than anything else in the copyright law, fair use is the concept that creators have struggled with: What can I take? How much? When do I need to get permission? What will happen if I take more than I am allowed? Who decides what kind of use is fair?

The first thing that you should know about fair use is that the generally believed “rule” that you can take from 3 to 5 bars of a song without permission is just urban legend. There is nothing in the law that says that. Presumably that idea came from the fact that, with the average song being 3 minutes long, 3 or 5 bars is negligible and many negligible uses are fair ones. But it isn’t a legal rule and, depending upon the work from which the 5 bars were taken—and which 5 bars they were—it might not be fair. So don’t use that as a guide.

Fair use is really only a defense to a claim for copyright infringement. There is no body from whom you can get a ruling in advance as to whether a use is fair or not, and unless the copyright owner (publisher) is very accommodating, you and it will probably disagree. That leaves you having to make a decision on your own (perhaps with the advice of a lawyer) as to whether you’ve crossed the line into unfair usage; if you use part of the work and the copyright owner discovers it, decides the use was not fair and sues you, you will have to defend yourself by arguing to the court that you made fair use of the material. The judge or jury will decide if you did or not.

So what will the court look at when having to decide if a use is fair?

The law doesn’t actually say what is or isn’t fair use. Because the answer can vary so much, all that Congress could do was create guidelines and let judges apply them to the facts of every new case. So the Copyright Act recites a four-part test that judges can use to decide fair use lawsuits. Although that doesn’t help you much, it is good to know what those guidelines are.

The four “factors” of fair use are:

• The purpose and character of the use, including whether such use is of a commercial nature or for non-profit educational purposes (Why are you taking another’s work, what are you doing with what you are taking and are you looking to make money from your end product that includes the taken work?)
• The nature of the copyrighted work (What kind of work are you taking from? Is it comprised of facts or is it a creative work? Is it published or unpublished?)
• The amount (quantity) and substantiality (quality) of the portion used in relation to the copyrighted work as a whole (How much did you take and was it a core portion of the borrowed work?)
• The effect of the use upon the potential market for or value of the copyrighted work (Will your work reduce the ability of the copyright owner of the taken work to market it or to get the expected price for a license or sale of it that would have likely been obtained had your work not included the taken material?)

As you can see, many considerations go into a determination of fair use and it is not easy to figure out at the time you are taking something whether you can. Generally, uses for teaching, research, news reporting, comment and criticism are allowed fair use by the courts, assuming the amount used is minimal and insubstantial. Other kinds of uses may or may not be: Taking from fact-based works would likely be more tolerated than taking from fictional (created) works, and taking from someone’s unpublished work would probably never be fair use. Parodists are given somewhat more leeway to take from the parodied work if the resulting parody is “transformative,” but not everyone agrees what that means.

So what can you do?

The easiest way to protect yourself is to contact the publisher of the work you want to take from and get written permission to do so. Quote or transcribe exactly what you want to use and how you intend to incorporate it into your work and ask for a gratis license to use the material.

If you choose not to seek or are denied permission (or the publisher wants a fee that you are unwilling to pay), you can consult a copyright lawyer to get an opinion as to whether he or she thinks the use is fair, but that is just an educated analysis, not a guarantee of what a judge would say if it ever came to that. If you do decide to use a portion of a copyrighted work without permission, try to make it as small and inconsequential as possible. The more you take, or the more important what you take is to the whole work from which it’s taken, the less likely it is that your use will be seen to be fair.

How can you avoid getting tangled in the fair-use web at all? Drop the idea that you need to put someone else’s work into yours; you don’t. It probably will be just as good if you create something entirely original. Then if it becomes a hit, you won’t be singing the fair-use blues.

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