My nephew has asked me to edit video of him skateboarding. He wants to use copyrighted music in the soundtrack. He has a legal copy of the music. Is it fair use for me to incorporate the music into the video if it’s for his own personal use?
Yes, for personal use its fine.
Check out the FAQs at ASCAP, BMI, or Harry Fox Agency.
Maybe it’s the fact that I haven’t had my coffee yet, but of the three, only the Harry Fox agency’s site had any easily locatable FAQs, and it didn’t appear to answer the question directly at all.
OK, I tracked down the ASCAP General Licensing FAQs page, but it doesn’t appear to directly address the question either.
Copyrights relative to music are even more complex to explain than normal written-matter copyrights, since they relate to performance more than to republication.
My understanding is that your use, incidental to and for personal not-for-profit created matter, is within the “fair use” guidelines. But that’s a tough one to make a definite call on – I know that churches have been threatened with lawsuits for using copyrighted religious music within services, for worship and not for-profit or even “performance” purposes.
I’d suggest a short e-mail to the copyright holder, stating the intended use and that the video is for personal enjoyment, not for public distribution, and that you intend to proceed with doing so unless they respond enjoining you.
Rule #1 (write this down): The fact that you are not making a profit on the copy has no relevance at all to copyright. It does not matter whether you’re charging for the copy or giving it away, whether it’s for a nonprofit or a big corporation. At most, it is one of several factors involved in determining fair use, and not the most important one.
The answer to the question is that make the copy is a copyright violation – no matter what the use will be – if you don’t have permission of the copyright holder.
Polycarp does give some good advice: ask the copyright holder if it’s OK. That’s the only sure way to be in the clear.
The short answer is that no, you don’t really have the right to copy this music (hence the term ‘copyright’). However, you are only going to get into trouble with anyone if you do one of the following:
- make money out of copyright material (and that includes making money out of something that includes the copyright material)
- prevent the copyright owner from getting money they are supposed to get by law
- performing copyright material
- publishing or re-publishing it
- broadcasting it
To do any of the last three, you either have to have the copyright owner’s permission or pay them whatever the law says they are entitled to get. So if you edit together some stuff and only you and your family will ever see it or enjoy it, then pretty much nobody will know about it and although it could be a bit naughty (depends on the interpretation of ‘personal use’, you won’t get into trouble).
It starts to get very iffy and seriously illegal if you make copies to give to friends, even if it’s for free. And if you charge for these copies, then it’s definitely, no arguments, 100% wrong and illegal.
I completely disagree with this suggestion unless the copyright holder is a small-time (non-major label) performer and personally known or related to you. If it’s ordinary pop music, this is an incredibly bad idea for the following reasons:
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They are 99.99999% certain to say no. Why in the world would they say yes? You’re asking them to give away something they would otherwise charge for. Why should they expand the definition of “fair use” to your case, when it is generally in their interest to narrow “fair use” as much as possible?
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They will then know who you are and that you were considering violating their copyright. You may be small potatoes to them and not worth their trouble to track down and keep an eye on, but a lot of those thousands of people the RIAA is currently suing probably thought that, too.
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The tactic of saying, as Polycarp proposes, I’m going ahead unless you say no, is, IMO, legally dubious, and very, very risky. IANAL, but I seriously doubt you could claim in court that their silence really gave you permission.
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If you go ahead and use it after they say no, and they find out, then you’re really screwed. They have documentation that you knew you were violating their copyright.
I strongly recommend against contacting the copyright holder. I can’t conceive of any circumstances in which it would work to your advantage.
If the tape really will be used only for personal enjoyment, meaning you’re not going to put it on the Web, you’re not going to make dozens of copies for your friends, you’re not going to give it to the local cable access channel to play, etc., then you are probably safe in using the music without getting permission.
I say “safe” not because it will be legal, but because the chances of your being found out are small, and because it probably will not be worth anyone’s trouble to go after you if they do find out. But if one of his stunts somehow becomes the Next Big Thing that everyone’s e-mailing to all their friends, you can probably expect an unfriendly letter from a large and well-paid law firm.
So, much will depend on what you, and perhaps more importantly, your nephew, do with this tape. And are you willing to take his word that he won’t make any copies? (Not trying to sow family discord, here, but kids are inexperienced and not always sufficiently impressed with the possible ramifications of their actions.) There is a risk. It’s small, and you can keep it small, but it’s not zero.
As I said, IANAL, but you may be able to increase your chances of a fair use ruling (if you get unlucky and are caught) by using many different cuts from many different artists, and NOT using all the cuts from the same record. Fair use favors using small portions of a larger work.
Someone will no doubt come along and say, it’s just illegal, don’t do it. I’m not saying they’re wrong, just that there is a gray area, both legally and ethically, in which this use might be justified.
If you want to completely eliminate the risk, look for the libraries of royalty-free music that are available for exactly this purpose. Back when I was doing audio engineering, a hundred years ago, there were collections of records (yes, vinyl LPs) that studios and production houses used. I haven’t looked lately, but I would wager that similar collections are now available online or as consumer software. You’ll have to pay a little, and the tunes may not be as catchy as the latest top-selling hit, but if you’re the nervous sort, you’ll sleep better at night.
Thanks everyone for all the responses. It sounds really complicated.
Since my nephew has thrown a monkey wrench in the works (He wants to use the video to try to get sponsors), I think I’ll stick with public domain material.
If I knew for certain that he’d only use it and not distribute it, I’d be tempted to use the material, because he did buy the CD.
A related question, from past reading, I believe you can use a clip (less than 10 seconds) without obtaining permission of the owner if you are not looping it to make it the basis of your new work. Does anyone know for sure? I certainly don’t expect you all to do my legwork for me. So if noone knows off the top of his/her head, I’ll just wade through ASCAP and etc.'s websites.
Thanks again.
Contact some local bands and see if they’d be interested in contributing music/letting him use their music. A good number of bands seem to have music recorded and are either looking for distribution or self-releasing. Perhaps they’re sufficiently interested in a chance for more publicity that they’d be agreeable.
I’ve heard the music that accompanies skateboarding tapes, and it seems like the kind of bands that appear have a strong punk/DIY outlook/ethic. Go local.
No, it isn’t. Quantum mechanics is complicated. German irregular verbs are complicated. Calculating planetary motions is complicated. This is simple.
If Fred creates something, it’s Fred’s intellectual property and it is automatically copyright. In our society, the law says that only Fred has the right to exploit that property, because it fell out of Fred’s head. So if it is sold, performed, enjoyed, published or broadcast, the law says Fred is entitled to some cash. This is Fred’s legal right and Fred can do deals and contracts pertaining to it. For example, he can do a deal with a record company that says they’ll help Fred sell more copies of his song but in return they get a slice of the action.
Read my last post. It tells you all the things that are bad, naughty, likely to land you in trouble. If you’re not planning to do any of those things, then you’re OK.
If your nephew wants to make copies of this video and use it to get sponsors, then refer to my previous post and you’ll see this is a no no. It’s no longer for personal, private use and enjoyment. (Quick tip: to ‘publish’ simple means ‘to make public’. That’s all.)
There is nothing else you really need to know (*). The ‘I once heard that you could sorta do this if it’s only for that reason or blah blah blah’ is all smoke, mirrors and cowpats. Read my previous post! It’s all there! Not complicated! For the purpose you have in mind, either make up your own music, use stuff in the public domain (and better be ready to prove it) or follow the EXCELLENT suggestions that you do a deal with a local band or music-maker.
I second everything commasense said, with the additional reason that these people move as fast as a comatose sloth in a fridge, so be prepared for them to take x months or years before you get a reply. Oh, and the ‘I’ll assume you have agreed unless you tell me you haven’t’ thing is pure legal drivel and doesn’t give you any legal protection whatsoever.
(*) Okay, there is just one other thing. It’s called ‘fair use’. But that’s only relevant if you are a critic, reviewer, academic or broadcaster, you are copying a small percentage of a work for your professional purposes, and you are prepared to argue in court that the purpose justified the copying and was within the intentions of the ‘fair use’ law as it is expressed and implemented in your legal territory. ‘My nephew wants a funky soundtrack to his skateboarding vid so he’ll look sexy to the sponsors’ is not currently recognised in law as a valid defence for blatant and knowing copyright infringement.
Oh for goodness sake, thank god we don’t pay people good money to study IP law; it all comes down to something you can learn in 10 minutes. Come on. Even in a quick read, your second factor is in itself an impossibility; you can’t copy it if someone should make money on it by law. Well, by law, you are entitled to a monopoly on copyrighted items (excepting fair use), and have the right to license a copy for money. Let’s say I’m the big bad record company, I say that underlaw I have a right to be paid for that second copy you are making for your personal skateboarding video. So you can’t do it.
I always misuse the word, but I think this is a tautology.
Incidentally, it’s interesting that we shut down posts where people ask for free health advice where getting a wrong answer could put them in a world of hurt medically, but we don’t shut down posts where people ask for free legal advice where getting a wrong answer could put them in a world of hurt legally.
Money is easier to replace than health.
Not for a lot of people.
If the tape is for promotional purposes, you DEFINITELY need to get the copyright holder’s permission, and I agree that you should get some sort of local band for whom your promo tape may be their only way of getting any exposure at all.
I worked for Bose years ago, and they used about 10 seconds of Benny Goodman’s recording of “Don’t Sit Under the Apple Tree with Anyone Else But Me” in an inside sales multi-media presentation (i.e., no one other than Bose employees or buyers from their regular reseller stores was ever going to see this thing.)
The copyright holder (I believe, Benny Goodman’s estate) asked for $10,000 per year for three years. Since Bose had already put the music in and put in the man-hours to edit the look of that part of the presentation around that before they asked for permission, they paid up.
When you’re dead, you’re dead.
As to your comment on free legal advice, I’m working on it.
And when your ass is sitting in prison for 10 years, you might wish you were dead.
The most important point. Too many hacks around here who have read a few websites on IP rights think they are attorneys.
Planetary motions are exceedingly simple. I could tell you everything you need to know about them in three sentences. But the fair use clause of copyright law is complicated. It’s left intentionally vague, so as to avoid loopholes, but the downside to that is that it’s hard to know exactly what is and isn’t allowed. Money is one consideration, and length of the portion copied is another, but you can’t just say anything simple like “A ten second clip for nonprofit purposes is definitely OK”. The only definite thing in copyright law is that if the owner gives you permission, you’re OK.
With that said, if he’s planning on using this video to promote himself, then Fair Use almost certainly does not apply. Use something in the public domain, or get permission (and if you get permission, I would recommend that you get it in writing and signed).
Incorrect. It would be completely legal for me to copy an audio CD if the sole purpose was to have an archival copy in case the one I bought was damaged. However, if I gave that copy to you THAT would be a copyright violation.