Infringement Or Fair Use: Knowing The Difference

Copyright is complicated, particularly in the music industry. With the recent rash of lawsuits which has been cropping up of late, we're taking a minute to breakdown the difference between fair use and infringement, with the hope of avoiding the later.

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Guest post by Jessica Kane

Copyright law in the United States can be complicated, especially in the music industry. Before using anyone else's work in your project or creation, it's important to be aware of copyright and fair use laws to avoid being fined or taken to court.

Copyright

As soon as anyone creates an original work, it's protected under copyright. This includes art, music, writing, film, or any other medium. After a number of years, the work enters the public domain, where it can be used by anyone. Until then, the creator owns all the rights.

Copyright laws were created to protect people's creative works, and if someone copies, uses, or profits from someone else's work without permission, they have committed copyright infringement. In some cases, however, people can use copyrighted works under the fair use doctrine.

Fair Use

Fair use allows for the unlicensed use of any work protected by copyright in certain circumstances. Section 107 of the Copyright Act explains the four factors that should be considered when classifying the use of a work as fair use.

The first factor to consider is the purpose for using the copyrighted work. Nonprofit, noncommercial, and educational uses are much more likely to be permitted than commercial uses where the user is profiting from the copyrighted material. However, not all educational and non-profit uses will be automatically accepted as fair use.

Secondly, consider the copyrighted work itself. Using creative works like novels, films, and especially songs will usually not be allowed under fair use. Works like these are completely unique to the creator, whereas factual material like news articles are not as original and may have more leeway to be used under the fair use doctrine.

When considering fair use, courts also look at the amount of material taken from the copyrighted work. Usually, a large portion taken means a lesser chance that fair use will be granted. The quality of the borrowed portion matters as well; even if the piece taken is small, if it's a distinguishable part of the work, it will probably not be considered fair use.

The fourth factor when determining fair use is the effect the use has on the copyrighted work's value. If the use decreases the value or tarnishes the reputation of the original work, it won't be protected under fair use.

Copyright Laws for Music

All musical works are automatically protected under copyright as soon as they are created. Creators can choose register their songs with the Copyright Office, which will be helpful if they need to take someone to court for copyright infringement.

The fair use doctrine applies to copyright in music, but most musicians hope to profit off of their work, so they usually can't claim fair use. If you sample someone else's material in your music without profiting, it may be protected under fair use.

If you want to profit from your song that sample a piece of someone else's work, you must get permission from the original artist. If you sample their work without permission, you could face a fine of $250 or greater. In some cases, people have been fined hundreds of thousands of dollars for copyright infringement.

Famous Music Copyright Infringement Cases

Throughout the years, there have been dozens of famous copyright lawsuits. One of the most famous cases involved Vanilla Ice's "Ice Ice Baby," which sampled from Queen's and David Bowie's song Under Pressure" without permission. The case settled out of court for an undisclosed amount of money, and Queen and David Bowie received songwriting credit and royalties afterward.

In 1984, Ray Parker, Jr. used the bass line and guitar riff from Huey Lewis' "I Want a New Girl" in the"Ghostbusters" theme song. This case was also settled out of court, likely for a very large amount of money, and the settlement terms were confidential.

Jessica Kane is a music connoisseur and an avid record collector. She currently writes for SoundStage Direct, her go-to place for all turntables and vinyl equipment, including VPI Classic.