Fair Use and Music

Thinking back to Fair Use Week, it might be interesting to discuss how fair use applies to something that most people enjoy—music. Music can be pretty tricky when it comes to copyright law because there are layers and divisions of rights.

First, it’s important to cover some of the basics regarding music and copyright. For example, in a popular song, both the author of the musical work and the author of the lyrics written to accompany it can have joint ownership of the copyrighted work. While either individual can grant someone else the rights to use the song, exclusive rights (the right to reproduce, distribute, create a derivative, or publicly perform or display a work) can only be given with the consent of both copyright holders. A sound recording of this same popular song has an additional division of rights. This division exists between the underlying musical work that is recorded (the popular song) and the sound recording itself.

If the recording is of an orphan work, then the problem gets even trickier because this means that either one or both of the copyright holders are unknown. This is unfortunately the case for many historic sound recordings. In regard to sound recordings and public domain (works not subject to copyright), this might be confusing—anything recorded before 1972 is under state copyright law until February 15, 2067. This essentially means that no sound recordings will enter the public domain until the year 2067. Although all of these layers are important to keep in mind, this tricky situation becomes much simpler if the use of the music is considered to be fair use.

When considering the fair use of music materials, it’s important to remember that context is critical. Despite popular belief, there is no set amount of music that is guaranteed to be considered fair use (not even two bars of a musical work or 10 seconds of a sound recording). For a use to be considered fair use then it must be transformative with value added to the work. The amount used must also be appropriate to fulfill the transformative use. This appropriate amount of copyrighted music used must play a key role in adding value to the new work being created.

This is exactly why Gregg Gillis, also known as Girl Talk, and several other artists like him have not been sued for sampling other artists’ music. Due to decisions in cases such as the 1991 Grand Upright Music, Ltd. v. Warner Bros. Records Inc. and the 2005 Bridgeport Music, Inc. v. Dimension Films, it has become common practice to seek permission and pay to use a sample in order to avoid copyright infringement. This process is expensive and takes time, and only the larger records companies can afford to spend their time and money this way. These artists and smaller record labels continue to sample music under the argument that the use falls under fair use. Whether or not sampling is legally considered to be fair use has yet to be tested in court since neither the 1991 nor 2005 cases utilized fair use as their defense. It may continue to stay out of court though, considering that if a court were to rule in favor of artists who sample under fair use, there would no longer be any reason to pay for the permission to sample.

Also, check out the many music copyright resources in the library catalog!

Special thanks to Kate Lambaria for this guest post!

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