Music copyright question

[Mr.Blue_Sky]

Let’s say I create a video presentation and use a copyrighted song as background music. It is not to be sold, rented, or in any way distributed with the intent to make money.

Now, let’s say I wanted to put the presentation on a website for anyone to see it for free.

Legalities?

[Jonathan_Chance]

Even if not for gain you would be distributing copyrighted material without permisson of the rights-holder. And that’s a no-no.

There’s a certain school of thought that believes that, just because one doesn’t PROFIT from usage, that usage should be allowed. But it’s not true. Even if you don’t profit monetarily you’re still gaining exposure and (presumably) prestige from someone else’s work. AND the rights-holder is potentially losing money through a free distribution of their protected material.

[Una_Persson]

First, IANAL. And I’m summaraizing what my understanding is of an issue that is actually fairly complex and takes quite a bit more text than this, as well as study of court rulings of similar cases, to try to get an accurate answer.

Non-profit use is only one aspect of defense in an overall Fair Use defense. It helps your case but is by no means decisive or a silver bullet. In theory, it seems that a copyright holder might win a case against your use of the song in either situation, barring a wealth of exceptions on your behalf.

Now, as to Fair Use: let’s look at what legislation comprises Fair Use. I’ll copy something from my Board.

**Sec. 107. Limitations on exclusive rights: Fair use **
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
<ul><li>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
<li>(2) the nature of the copyrighted work;
<li>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
<li>(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
</ul>

First, note the key part:

…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

(emphasis added)

If your video presentation is for those purposes above, that is a defense - but only a defense, not a slam-dunk by any means.

Whther you have a defense under bullet item 1 depends once again on what our intended use of the work is.

Bullet item 2 refers to the “worthiness” of the work, and this is going to vary quite a bit depending on the creative effort of the work. Most professionally produced songs are considered to have a very high level of “worthiness” for protection, and thus you may be out of luck here in considering this as a defense.

Bullet item 3 refers to how much you intend to use; if you intend to use the whole work, you have this strike against you.

Bullet item 4 refers to whether or not you’re taking money from someone else - the copyright holder - or could potentially be destroying a future or potential market for the copyright holder. Even if they aren’t currently making money off it it doesn’t mean they might change their mind some day. So you’d have to consider the song and its disposition to weigh your odds under this portion.

Overall, I wouldn’t want to face a challenge from a copyright holder over the use of a copyrighted song in this case. It seems in this case there would not be enough of a defense for Fair Use, and with the press concerning pirates and MP3s etc. etc. you’d be starting out on the wrong foot in the eyes of some (such as, a jury) from day one.

Once again, IANAL, etc.

[Mr.Blue_Sky]

Fair enough.

Thanks.