Q&A: “I’m making a video for my business that documents a project and isn’t used to sell a product. Do I need permission to use a song in the video if I credit the author of the song?” This is a great question and one that comes up often in the context of YouTube.
Copyright Law
We’re talking about copyright law because copyright protects original works of authorship fixed in a tangible medium of expression, which includes recordings of music.
As a general rule, you should always get permission from the owner before using the work for anything. Simply crediting the author doesn't get you past copyright infringement, especially since the author might not be the owner of the copyright!
Get Permission
In the US, copyright law gives the owner of a copyright the exclusive right to copy, display, distribute, prepare derivative works, and publicly perform the work. These exclusive rights can be individually granted to third parties in a license or assignment by the copyright owner, which we’ll discuss in a later post.
To use a song in a video you need to embed the audio in the video file. This involves making a copy of the song (an exclusive right) because the song file does not just transfer to the video – a copy of the song file is made when it is placed within the video file.
The song will also be performed (another exclusive right) because the audio plays during the video. Consequently, you will probably infringe on at least two of the exclusive rights if you don’t have permission from the copyright owner.
What happens if you don’t get permission?
If you’re lucky, the copyright owner will be happy you’re using the work (or just not find out) and leave you alone, but that’s a rarity considering that many owners vigilantly police their copyrights.
Most likely you will get a cease and desist letter that tells you to stop any and all uses of the copyrighted work and possibly pay the owner money to settle the issue or enter into a license. Cease and desist letters aren’t legally binding but they are a serious issue and you should consult an attorney if you receive one. Furthermore, there is no requirement to send a cease and desist letter first - you may just end up with a lawsuit on your hands.
If the alleged infringing use is online, then your service provider may also receive a “DMCA takedown notice” from the owner of the copyright, at which point your service provider is required to prevent access to the accused material. There’s a lot more to DMCA takedown notices but that’s getting outside the scope of this Q&A.
Fair Use
Okay, but do you always have to get permission?
First of all, remember the general rule: always try to get permission. But back to the question: no, you don’t always need permission, but there are very specific rules as to when you don’t.
The doctrine of “fair use” determines when you can freely use someone’s copyrighted work without permission. This includes purposes such as parody, criticism, comment, news, and education.
For fair use, courts look at:
- the purpose and character of the use, including whether the use is of a commercial nature or is nonprofit educational
- the nature of the copyrighted work (i.e. how creative it is)
- the amount used and how substantial that use is
- effect of the use upon the potential market for or value of the copyrighted work (i.e. will it make them lose money)
I never recommend that someone try using the fair use argument to start with. Going for fair use should be a last resort because it can be very difficult to prove, and the only way you can really prove it is in court, i.e., getting sued.
Even if you aren’t selling a product, a use can still be a “commercial use”. For example, a video that isn’t necessarily selling a product is still likely promotional and is not nonprofit educational.
Getting Permission
So if you're set on using a certain song, you need to look into getting permission by asking the copyright owner if you can use the work for a certain purpose. The permission doesn’t need to be in writing, but having it in writing (even just an email) helps if a dispute ever arises because you have something to look back on.
The tricky part with music is that the copyright in a recording is broken into two parts: the recording itself (the master sound recording), and the written music and lyrics (the composition) that the recording is based off of. If you want to license a recorded song, you need to get permission from the copyright owner of both the master recording and the composition.
The easiest way to do that is to go through one of the performing rights societies (ASCAP, BMI, or SESAC). They have the contact information for music publishers, which typically have the right to license the song. If it's a small band, you can try contacting them directly too.
Also, there are a few websites that have music available for this sort of thing. Some charge and some don't - depends on the type of license. If you want to try to find free music, I recommend starting with music licensed under Creative Commons, a nonprofit that provides free public licenses. You can find that here: http://creativecommons.org/legalmusicforvideos
The Take Away:
Get permission from the copyright owner by seeking out a music license. Fair use is a viable but risky alternative, and the recent Beastie Boys v. GoldieBlox is a good example of what happens when you avoid getting permission (*spoilers* GoldieBlox was sued).
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
