Fair Use Law

rhiggins wrote on 10/21/2003, 5:08 PM
I had planned to use Screenblast's Move studio to create a movie that contained slideshows of my kids, and family that showed various pictures and live camera feed while playing various different songs from different artists so that I could burn to onto a DVD and send it out to my family, and relatives for a Christmas present.

Is it illegal to use music in this fashion???

Based on the Fair Use Law below I did not think so... can someone please tell me...

Thanks! (and by the way you can read this on WWW.soundamerica.com)


17 U.S.C. 107 (1988 & Supp. IV 1993). Section 107 provides in part:

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:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Comments

JohnnyRoy wrote on 10/21/2003, 7:53 PM
I am not a lawyer and this is not legal advice, but I believe you are correct. It would be illegal to do this because you are giving them a copy of a song that they do not have the rights to own (because you don’t have the rights to give it to them). You would be better off if you used royalty free music (sometimes called buyout music) or something like SmartSound Movie Maestro which will compose a piece of royalty free music the exact length of your video.

I realize this is no substitution for a song that is meaningful to the family. You might think that buying everyone a copy of the CD’s that the music came from would ensure they all have a legal copy but I’ve been told that is still considered copyright infringement because you didn’t secure sync rights to synchronize the music to the video. Technically you have created a derivative work and that requires a different license (called a sync license) to use copyrighted material in your own work. It is generally OK to do this for yourself and even show it to your family and friends in your home but once you take it out of your home, it becomes a public performance and requires a sync license. You could argue about "the effect of the use upon the potential market for or value of the copyrighted work" since the market for your personal home video is next to nil, but I would consult a lawyer if you are worried enough to have even looked this up and ask the question. You might want to try and secure the rights just in case.

A general rule of thumb is: if you didn’t create it, it’s probably illegal to use it outside of your home without permission from the copyright owner. I know that doesn’t help your Christmas list this year but it does protect the artists who make the music you love from having their work used without permission. The CD you own gives you the right to listen, not to reuse in other works.

~jr
Steve Grisetti wrote on 10/22/2003, 9:21 AM
Yes, it is illegal, but it's unlikely anyone (even Disney, who is notorious for pursuing mis-use of their property) would make a big deal out of it. Technically, even a DJ hired to play copyrighted music at a wedding is violating the copyright unless he's paying a fee for every song he plays, but nobody is going to pursue it.

I wouldn't feel too guilty about using recorded music in a little video for family and friends. Unlike P2P sources like the old Napster, you're not giving it away as a substitute for their purchasing it themselves, and you're not in any way competing with the artist's ability to sell his music for profit (unless you're also issuing your own soundtrack album).

On the other hand, if you plan to do a video as a work-for-hire or for your own personal profit, please make every effort to pay the proper licensing fee.

Hope that amply muddies the waters for you.