Musicians, concert/CD reviews, copyright, and fair use

Factual Questions
1

A musician friend of mine told me that a booking agent once told her that performers have the right to reproduce concert and CD reviews (that have been published in a newspaper or magazine, for example) in their promotional materials (such as in a press kit or on the performer’s Web site) without getting permission. (The phrase used was something like, “They’re yours to do with as you please.”)

To which my answer was, “Huh?”

As a copyeditor, I understand the basic nature of copyright (it applies as soon as the expression of an idea is fixed in tangible form). I would not say that reviews belong to the performer, but rather that the writer or publication is the copyright holder and that, if the booking agent was right, that the performer has a right to republish without permission under some application of fair use.

I’m familiar with the most common applications of the fair use exception. But does this situation apply? I’ve considered the four factors listed in section 107 of the US copyright law:

[ol][li]Is such use of a noncommercial nature? I’d think not; it’s being used to promote the performer and, presumably, sell recordings and concert tickets and obtain bookings.[/li][li]The nature of the copyrighted work – ?? Not sure how this applies here.[/li][li]Amount and substantiality – Quite often the entire review is reproduced (and attributed, of course!), although sometimes just a pull quote of a few sentences.[/li][li]Effect on market/value – Perhaps this is the salient point. I don’t think sales of a particular newspaper or magazine issue are harmed because of a reproduced short article that someone reads months later.[/ol][/li]Clearly it’s always safest to obtain permission, as the Copyright Office site suggests, but I’d like to know whether this is a common application of fair use, and whether a performer would look ridiculous for asking permission to republish reviews if it’s accepted practice not to.

Lawyers? Music industry people? What is your experience with this? I’m especially interested because I’m doing my friend’s Web site, and I’d like to make sure we have our ducks in a row regarding permissions (with the standard “it’s best to check with your own lawyer” caveat applied to anyone’s comments).

2

Scarlett actually we often do get permission to reprint some comments for our musicians, though in some circumstances it isn’t taht necessary. For example, the “testimonials” you see for movies such as “two thumbs up. . . a rolicking adventure with unparalled depth” usually don’t run afoul of the law because they are reporting on comments that were made.

Nonetheless, we get permission to use that kind of stuff, if anything just to avoid any problems or making anyone mad.

For example, a major radio personality raved about a particular performer. We asked if we could quote his comments on the performer’s website and in the press kit. He said yes, BUT we had to make it clear that he was expressing his opinion so that it did not appear that the radio station was endorsing the artist.

Reprinting an article or review in full is a different story.

Come to think of it though, every press kit I’ve ever seen has included photocopies of the actual articles and reviews… and that can’t be quite right.

I’ll ask our IP lawyer when I see her this week, because now I’m quite curious. I expect it is indeed violating copyright laws, but for the most part no one cares enough to sue.

3

I think that if people did start to sue it would lead to an incredible backlog in the courts because of the domino effect, (one person sues, someone else, two more people etc,) and possibly result in some judges going postal.