Fair Use

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Fair Use

In our many threads about royalty and copyright obligations nothing has been said about "Fair Use".

In it's simplest form "fair use" is intended to provide a reasonable no-cost way for scholars to mention and quote from copyrighted material as part of building a paper documentation.

Carried to the radio world it provides a means by which a non-commercial program can be assembled which has an educative purpose.

But in practice a claim of "fair use" of copyrighted materials can be challenged and become as costly to defend as outright avoidance of royalty payments.

The burden of proof lays with the "fair-user" to convince a court that such use is legitimate in a particular case.

An example being studied at KDX is provided by the daily news program "Democracy Now". The main host, Amy Goodman, selects music clips from standard works that underscore the theme or tone of a story, but which otherwise would require royalty payment. I'm guessing that the program is using the music under "fair use", but even if that's their intent, does it protect affiliate stations from a claim of royalty abuse?

Let's take another example, abstract but possible... suppose a program depicting "thunderstorms in classical music" were prepared along educational lines... music from William Tell by Rossini, the Pastoral Symphony by Beethoven, the Alpine Symphony by Richard Strauss, the Grand Canyon Suite by Ferde Grofe... music with distinct storm scenes. Is it Fair Use?

The word "Use" is crystal clear but the other word "Fair" is not.

"...The main host, Amy

"...The main host, Amy Goodman, selects music clips from standard works that underscore the theme or tone of a story, but which otherwise would require royalty payment..."

I wonder if the key there is "music clips". Can a short clips be used without worrying about paying royalties?

Rich Powers Part15, Take 2..

All I Know

Rich Powers wonders:  "Can a music clip be used without royalty payment?"

The only time I ran across a discussion of that point was a couple years ago on the Art Bell website when he was planning to start his online streaming edition of his show.

Art Bell expressed great shock and disappointment when he learned that he'd need to pay full royalty even on brief clips from songs used for bridges and bumpers. He wanted to use the cuts that fit his segments and not use "buy out" music, which is private label production music.

Also, I have reason to believe that news broadcasts have an entire set of copyright allowances that don't apply to entertainment programs, but where this is printed I do not know.

Carl Blare

Fair Indeed

There is a myth that says if you play less than eight bars/less than 20 seconds/less than 30 seconds/no vocals etc, then it is considered "fair use". It doesn't work that way. I've seen a lot of people take that position and go down in flames. 

Public Domain recordings are of course the safest route, but in the case of the "thunderstorm" example, its not the composition as much as it is the performing organization that created the recording. If you know a show like that is in the works (in other words, dont do it the same day you think of it), email the orchestra or soloist on the recording, explain to them the proposed use along with your explanation of it being educational/academic, and then mention the range of the station. If they know the broadcast will fade long before the corner Starbucks, they will most likely give permission; or at least direct you to the copyright holder. If they don't OK it, pick another recording by another orchestra. Or, as a last resort, seek out a MIDI file of the recording and play it back thru a decent soundcard with a good GM synth bank.

For program elements and station imaging, raid the websites offering free music and royalty-free music (bit of a distinction), with composers that allow free use of their music -- as long as you write to them and tell them what you want to use it for (bumper music for weather reports, theme song for talk show, etc).  I've found some are quite willing and thrilled when you send them computer-ready art of your station logo and your permission for them to use it in their own promotional kit: DJ Kale's music is heard on Royaltown Radio 1690 in the USA!

This isn't a terribly detailed explanation of Fair Use I know, but more of a method to legally work within it and around it. I hope its helpful.

Darsen the III


Getting Ripped Off

During the years operating a commercial recording studio I sunk money into "production libraries" also known as "buy-out music", and still have the discs from Boosey & Hawkes, Capitol Production  Library, NBC Production Library, and a few others.

In addition to the initial cost, every time I used a cut on a paid job I was required to file paperwork describing the use together with a check based on a per-cut cost, known as a "needle-drop".

In one case, however, I needed some Japanese old-time music which I had on an Everest album. I wrote to Everest asking for permission, and some guy wrote back that if I made out a check to him for $100 I could use the music. I've always suspected that I was ripped off and that he deposited the money in his personal account.


Carl Blare

Yah think?..

Yah think?..

Rich Powers Part15, Take 2..

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