KMC Forums - Music industry more restrictive on "Fair Use"

Ever notice how most Youtube takedowns rare due to music rights issues? There's a reason for that.

https://nmbx.newmusicusa.org/are-tr...l-to-musicians/

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So why does music seem to have more restrictive standards for fair use than other creative arts? A clue is in the quotes from the cases. With respect to music, there�s a well-established market for these uses, including licensing arrangements, reprints, synchs, and samples, all of which are treated as derivative works. And courts are very reluctant to disrupt the marketplace� even one as dysfunctional as music licensing. This goes back to the first principles of the Copyright Clause, to Justice Story�s fair use test from nearly 175 years ago (��the degree in which the use may prejudice the sale, or diminish the profits��) and the fourth factor of Section 107. Ironically, it was the famous Southern District �Thou shalt not steal� case that essentially created the sampling marketplace.

And given the steep decline in mechanical royalties and the paltry payments from streaming, permissions, synch, and sampling uses are among the few areas where musical creators can reasonably be compensated. Do we really want to change this in order to expand fair use? While doing so would greatly enlarge the creative pallet available for new works, it would deny the owners of existing works the fundamental right to say �no� to uses of their works they don�t like and limit the creators of both the underlying and new works to profit from them. Whether or not such a reshaping of the fair use landscape is a good thing or not is a policy debate to be had elsewhere.

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So what does our slog through the thicket of fair use jurisprudence tell us? Clearly, fair use is a continually evolving doctrine and in recent years courts have construed fair use broadly, like a �right� at least as applied to creative works other than musical ones. In fact, in a bit of hot news, on September 14, the Ninth Circuit in California issued a 34-page fair use opinion in the �dancing baby� case, the one where a mom posted a 29-second video on YouTube that showed her toddler dancing to Prince�s song, �Let�s Go Crazy� and Prince�s publisher, Universal Music, told her to take it down.

The Court held that a copyright owner must consider whether the online usage is protected by fair use prior to sending a takedown notice under the Digital Millennium Copyright Act of 1998 (DMCA). In reaching this decision, the Ninth Circuit confronted the issue of whether a fair use is an �affirmative defense� or a �right� and, at least for purposes of the DMCA, views it more like a right as fair use is �authorized by law.� Of course, any �consideration� of fair use involves application of the detailed analysis discussed above, including the application of �transformative use� under the Section 107 factors and increasingly complicated case law.

So how should one determine if a use is fair or foul? Especially if you�re a musician, you should be guided by the preamble to Section 107 and focus on traditional areas like �criticism, comment, news reporting, teaching, scholarship, or research.� Otherwise, be prepared to seek permission or at least the counsel of an experienced lawyer so that you don�t take a gamble on fair use and make schlimazels of your collaborators, commissioners, publishers, and presenters.

� 2015 Marc D. Ostrow

This article, including the author�s replies to any comments, is intended to supply general information and guidance. It does not constitute legal advice and does not create an attorney-client relationship. Readers with specific questions should contact an attorney with relevant expertise for legal advice pertaining to their particular matter, as every situation is unique.

The article has a lot more content, too much to post. Worth reading for specific historical cases and how music copyright law evolved, and getting some insight into how "Fair Use" is nearly impossible to win in your average videos (It's so bad, even Weird Al seeks permission first. Rewritten lyrics aren't enough. And you need to comment on the music itself, in strictest readings of the law, so no background music of an unrelated video.)

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