# Legal question regarding MUSIC and "Fair Use"...
**URL:** https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986
**Category:** Factual Questions
**Created:** [May 21, 2007, 9:39pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986 "2007-05-21T21:39:44Z")
**Posts on this page:** 15
**Page:** 1
### Author:  [@freewill39](https://boards.straightdope.com/u/freewill39)
#### Post date: [May 21, 2007, 9:39pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/1 "2007-05-21T21:39:44Z")
Hello, all.
I am preparing to put out a vocal warm up CD series (I’m a private voice teacher), and, as an introduction to the CD, would like to put together a 20 second audio montage of me singing various songs in various styles. So, it would be several 3-5 second clips all fading into one another.
Some of these songs are not original songs (ie: me singing a Led Zeppelin song, me singing a Ray Charles song, me singing a song from the musical “Kiss Me Kate”…). Though the clips will only be a few seconds long each, the songs themselves may be recognizable for a couple of seconds.
What I’d like to know is if it would be considered “Fair Use” of the songs. Granted, I’m using the songs for a commercial purpose, but besides that fact that they would only used for a couple of seconds or so each, I found this note on [www.PDInfo.com](http://www.PDInfo.com) , the public domain reference site:
```
"Determination of Fair Use is weighed by looking at how the work is used, how much of the work is used, and probably most important how does the use affect the value and potential sales of the original work."
```
…if this is true, then certainly, what I’d be doing would have absolutely zero effect on sales of these original artists’ songs. I understand it’s a gray area at best…but are there any entertainment lawyers or people in THE KNOW who can offer a little guidence?
Thanks! - Freewill39.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [May 21, 2007, 10:04pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/2 "2007-05-21T22:04:43Z")
No.
For songs, there is no such thing as fair use. The Verve was hit with and lost an infringement suit by the Rolling Stones for sampling four bars of a Stones song.
You would be required to license the song for it to be legal. You can do it and hope no one will notice, but you’d be on shaky ground if they ever did.
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### Author:  [@TimeWinder](https://boards.straightdope.com/u/TimeWinder)
#### Post date: [May 21, 2007, 10:11pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/3 "2007-05-21T22:11:46Z")
[QUOTE=RealityChuck]
For songs, there is no such thing as fair use.
[/QUOTE]
Cite? This would make libraries very upset, if true, but I can’t find anything in copyright law that would indicate this is the case. The specific use you mentioned wouldn’t necessarily be fair use, anyway. Derivative works are still covered by copyright.
Fair Use is very commonly misunderstood – it’s primarily for things like education and libraries. I recommend the four-part staff report that starts [here](http://www.straightdope.com/mailbag/mcopyright1.htm) as a good starting place.
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### Author:  [@GorillaMan](https://boards.straightdope.com/u/GorillaMan)
#### Post date: [May 21, 2007, 10:19pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/4 "2007-05-21T22:19:21Z")
[QUOTE=RealityChuck]
The Verve was hit with and lost an infringement suit by the Rolling Stones for sampling four bars of a Stones song.
[/QUOTE]
You understate the case massively. The whole of _Bitter Sweet Symphony_ was constructed around the original version. And they weren’t “hit with” anything, it was an ongoing wrangle from when they first wanted to use it.
Sorry, back to the purpose of the thread.
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### Author:  [@wendigo1974](https://boards.straightdope.com/u/wendigo1974)
#### Post date: [May 21, 2007, 10:25pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/5 "2007-05-21T22:25:30Z")
How do bands who only do covers get round this?
I noticed when I was in Bahrain last summer the girls singing live in bars would slightly change the lyrics in their songs.
Is this a valid way round copyright.
“Leaving on an Airplane” was a stalwart favourite of us in the bar.
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### Author:  [@RedSwinglineOne](https://boards.straightdope.com/u/RedSwinglineOne)
#### Post date: [May 21, 2007, 10:27pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/6 "2007-05-21T22:27:00Z")
From the OP’s own cite…
[The rumors that it is OK to use so many notes or so many bars are just not true. There is little doubt that, other than private in-home listening and playing, Fair Use of music is extremely limited.](http://www.pdinfo.com/fairuse.htm)
Although this would have little effect on the value of the original, you are creating a commercial work which is benifitting from using copyrighted songs.
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### Author:  [@GorillaMan](https://boards.straightdope.com/u/GorillaMan)
#### Post date: [May 21, 2007, 10:29pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/7 "2007-05-21T22:29:12Z")
[QUOTE=wendigo1974]
How do bands who only do covers get round this?
I noticed when **I was in Bahrain** last summer the girls singing live in bars would slightly change the lyrics in their songs.
[/QUOTE]
My bolding. I strongly suspect this makes the enforcement of copyright laws a little more complex.
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### Author:  [@Musicat](https://boards.straightdope.com/u/Musicat)
#### Post date: [May 21, 2007, 10:41pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/8 "2007-05-21T22:41:29Z")
[QUOTE=wendigo1974]
How do bands who only do covers get round this?
[/quote]
Bands making covers are re-recording something already released. This is covered (in the US, at least) by compulsory license. The author has the right to record it first, but after that, anyone can, paying the statutory fees, of course. [Cecil said it here.](http://www.straightdope.com/classics/a1_324b.html)
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### Author:  [@justrob](https://boards.straightdope.com/u/justrob)
#### Post date: [May 21, 2007, 10:50pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/9 "2007-05-21T22:50:40Z")
I’m not sure if this particular scenario is covered here but someone made quite the intereting video about Fair Use.
[ ](https://www.youtube.com/watch?v=CJn_jC4FNDo)
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### Author:  [@GorillaMan](https://boards.straightdope.com/u/GorillaMan)
#### Post date: [May 21, 2007, 10:56pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/10 "2007-05-21T22:56:22Z")
[QUOTE=Musicat]
Bands making covers are re-recording something already released. This is covered (in the US, at least) by compulsory license. The author has the right to record it first, but after that, anyone can, paying the statutory fees, of course. [Cecil said it here.](http://www.straightdope.com/classics/a1_324b.html)
[/QUOTE]
The situation described by **wendigo1974** seemed to be a wafer-thin excuse to avoid even standard royalties.
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### Author:  [@Frylock](https://boards.straightdope.com/u/Frylock)
#### Post date: [May 21, 2007, 11:01pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/11 "2007-05-21T23:01:15Z")
“Sampling” is pretty common in some genres of music these days, isn’t it? Do they generally have to ask permission to do this, then?
-FrL-
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### Author:  [@gotpasswords](https://boards.straightdope.com/u/gotpasswords)
#### Post date: [May 21, 2007, 11:02pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/12 "2007-05-21T23:02:26Z")
The educational purpose of using small samples of the performances should be enough to qualify for “fair use.”
From [Stanford University’s Fair Use guidelines:](http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-b.html)
> [@Stanford University](#):
>
> Publishers and the academic community have established a set of educational fair use guidelines to provide "greater certainty and protection " for teachers. While the guidelines are not part of the federal Copyright Act, they are recognized by the Copyright Office and by judges as minimum standards for fair use in education. A teacher or pupil following the guidelines can feel comfortable that a use falling within these guidelines is a permissible fair use and not an infringement. Many judges look to these guidelines when making related fair use determinations…
>
> 1. Rules for Reproducing Music
> …In addition, a single copy of a sound recording owned by an educational institution or an individual teacher (such as a tape, disc or cassette) of copyrighted music may be made for the purpose of constructing aural exercises or examinations…
I’m assuming you want to make a handful of copies for students to use, rather than just one CD, but as long as you don’t go stamping out hundreds of copies, I wouldn’t expect anyone to complain, and if they did, “educational use” is a pretty solid defense.
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### Author:  [@Mister\_Rik](https://boards.straightdope.com/u/Mister_Rik)
#### Post date: [May 21, 2007, 11:58pm UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/13 "2007-05-21T23:58:52Z")
[QUOTE=wendigo1974]
How do bands who only do covers get round this?
[/quote]
If you’re talking about local cover bands that perform in clubs, this is supposed to be handled by the club itself obtaining a license from the BMI or the ASCAP. The club pays a licensing fee to the organization, and they are then authorized to provide entertainment that uses copyrighted music (technically this includes karaoke and jukeboxes, in addition to live musicians). The BMI or ASCAP then distributes the fees to the various songwriters and publishers, using some formula of their own. Additionally, a performer or band can become licensed by one or both of these organizations so that they are covered in the event that the club isn’t licensed.
However, I’m not sure what percentage of clubs actually bother to obtain a license.
> [@](#):
>
> I noticed when I was in Bahrain last summer the girls singing live in bars would slightly change the lyrics in their songs.
> Is this a valid way round copyright.
I’m pretty sure … no. From here:
> [@](#):
>
> **9. If I modify a copyrighted work, I create a new work in which I hold the copyrights.**
>
> Sorry, but no. 17 U.S.C. § 106. Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create a new version of that work. You cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent. Derivative works may be copyrighted, but only the owner of the copyright or someone with the owner’s consent can create a derivative work. 17 U.S.C. § 103; see Circular 14.
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### Author:  [@Swallowed\_My\_Cellphone](https://boards.straightdope.com/u/Swallowed_My_Cellphone)
#### Post date: [May 22, 2007, 12:27am UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/14 "2007-05-22T00:27:49Z")
[QUOTE=Frylock]
“Sampling” is pretty common in some genres of music these days, isn’t it? Do they generally have to ask permission to do this, then? -
[/QUOTE]
Yes, you need to licence the song if it is included in a “derivative work”. DJ Shadow uses almost nothing but samples and it keeps his lawyers very busy. You have to get a licence for the master recording of the work you sampled in addition to the mechanical licence.
Cover bands who release CDs of their covers can get a compulsory licence. You can do it online relatively cheaply these days. If you have several songs it can get a bit costly when it comes to licencing fees. My buddies had a coer tune on their last CD. I think they paid about $160 in licencing fees when they made 1,000 CDS that had two cover tunes.
When they perform in bars, it’s the bar that pays for it (has something to do with blanket fees that let the bar play tunes their DJ plays as well as whatever the bands play.)
The OP needs to get a compulsory licence for each song used if you are going to distribute the CD, and “distribute” includes giving them away for free. Singlfile is probably the easiest way to do it. Go to: [http://www.harryfox.com/index.jsp](http://www.harryfox.com/index.jsp) and read up. It’s for “individuals, community groups, schools or religious groups who are producing between 500 and 2500 copies of a recording.” The price varies per the length of the song.
> [@songfile](#):
>
> 1. What is the current statutory mechanical rate? How is it calculated?
> The current statutory mechanical royalty rate is $.091 (9.1 cents) per song per unit for recordings of compositions up to five minutes (5:00) in length.
>
> For example, if one were to make a recording of a song that is less than five minutes in length (e.g. 4:07) and then manufacture and distribute 500 units of the recording, the total amount of royalties due would be $45.50. ($0.091 X 500 (units) = $45.50).
>
> For songs over five minutes in length, the rate is based upon $.0175 (1.75 cents) per minute or fraction thereof as demonstrated below:
> 5:01 to 6:00 = 0.105 (6 X .0175)
> 6:01 to 7:00 = 0.1225 (7 X .0175)
> 7:01 to 8:00 = 0.14 (8 X .0175)
>
> For example, if one were to make a recording of a song that is six minutes and thirty-eight seconds in length (6:38) and then manufacture and distribute 500 units, the total amount of royalties due is $56.25. ($0.1225 X 500 (units) = $61.25).
ETA: That website also has an FAQ that will tell you what to do with sampling etc.
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### Author:  [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)
#### Post date: [May 22, 2007, 12:41am UTC](https://boards.straightdope.com/t/legal-question-regarding-music-and-fair-use/404986/15 "2007-05-22T00:41:45Z")
[QUOTE=RealityChuck]
No.
For songs, there is no such thing as fair use.
[/QUOTE]
That is categorically wrong. The seminal Supreme Court case on Fair Use, \*Campbell v. Acuff Rose Music \* concerned 2 Live Crew’s sampling of Roy Orbison’s song “Pretty Woman.” 2 Live Crew requested the sample and were refused; they went ahead anyway and won. The Court found fair use in 2 Live’s Crew’s parodic use of the opening bars of Orbison’s song.
Reading how the justices try to evaluate the artisic merit of a 2 Live Crew song is one of the more amusing things ever committed to the court record.