Hello curiogeorges,
First of all, I should point out that I am not a lawyer, and therefore
my answer cannot be taken as legal advice. Copyright law is not
always a very straightforward issue, so please only take this as a
layman's understanding of the law. Also, copyright law does vary
slightly from country to country. While most countries recognize the
copyright holdings of each other's citizens, there are exceptions. I
will use US copyright law as a reference point for my answer.
Copying a small portion of a song without the artist's permission is
violating their copyright unless it can be seen to fall under "fair
use". Fair use is not a strictly-defined area of copyright law, but
rather an open-ended addition to the law which gives some defense
against a copyright holder suing someone unreasonably.
Let's step through section 107 of US Copyright law and see if it applies here.
"Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright."
US Copyright Office - Copyright Law of the United States of America, section 107
http://www.copyright.gov/title17/92chap1.html#107
First of all, let's take note of the list of suggested purposes which
result in fair use: criticism, comment, news reporting, teaching,
scholarship, or research. Using a work for any form of self-promotion
does not seem to fall into these easy categories. However, we aren't
limited to these purposes. Other usage may be considered fair use,
and four factors are listed for consideration.
"In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include ?
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work."
(reference same as above)
If the purpose and character of the use that you have described is of
a commercial nature, it will count against you. As far as I know,
this will include what you are describing as "self-promotional" use.
For example, I think that using a song sample in a multimedia demo
reel to promote yourself to potential employers is a commercial use.
At best it would be considered personal use, which might not count
against you as strongly, but probably would not count in your favour
either.
The nature of the copyrighted work is not likely to be of consequence,
as far as I know. The amount of the work you've used in relation to
the whole will count in your favour, but this alone is no guarantee.
Item number four could go either way, depending on the context of your
use. Using a sample on a website or public presentation could have a
wide audience, and it could be argued that it causes the artist's work
to be associated with your company or product, affecting sales. (In
fact, I would suggest that either of these scenarios really must be
considered advertising.)
On the other hand, if the music sample is used only for a closed-door
multimedia presentation (that is, not made publicly available), the
effect of the use upon the market value of the work is negligible.
And since you have only copied a small portion of the work, it could
be argued that even the potential market of those people viewing your
presentation is unaffected. Hearing a 4-second sample of a song is
not likely to substitute in the audience a desire to buy a copy of the
entire song.
Given all of this, we have two situations: a public presentation
(including a website on the Internet) is almost certainly not going to
be considered fair use, while a private one would have some possible
grounds for argument. In the first case, I would suggest contacting
the copyright holder and asking for permission, stating clearly the
limitations of the use you are asking for. In the second case, you
would have some reasonable grounds to argue fair use, if the copyright
holder found out and initiated a lawsuit against you (which seems
unlikely to me).
While my primary source for this answer was from the resources of the
US Copyright Office, I also should let you know that I tried searching
for instances of "self-promotion" being a factor in copyright law, and
could not find any. I cannot tell you that there is no such thing,
but I can tell you that I've never heard of it, it doesn't come up in
US Copyright law, and it would seem to me to leave far too wide a
loophole for use in advertising which would hurt the copyright holder.
Search strategies:
copyright law
copyright law "self promotion"
References:
1. U.S. Copyright Office
http://www.copyright.gov/
2. U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone
Else Use Mine?
http://www.copyright.gov/help/faq/faq-fairuse.html
3. Department of Justice Canada - Part III Infringement of Copyright
and Moral Rights and Exceptions to Infringement
http://laws.justice.gc.ca/en/C-42/39062.html#rid-39082
4. The Copyright Licensing Agency Ltd. : The UK's reproduction rights organisation
http://www.cla.co.uk/
I hope this has been helpful!
Sincerely,
- josh_g-ga |
Clarification of Answer by
josh_g-ga
on
14 May 2004 09:34 PDT
A website that is accessible to anyone on the Internet would be
considered public. I don't have any knowledge of similar prior cases
being taken to court, and most of the information available about the
RIAA suing copyright infringers right now is related to their many
lawsuits against online filesharers. Sifting through legal records
for a prior case is a very time-consuming process, and one which I
feel is beyond the scope of an appropriate answer.
Keep in mind, this is civil law, not criminal law, and it's not a
clear-cut area of civil law either. There are three real questions
underlying this. Could the copyright holder sue you? If you make a
copy of something without the copyright holder's permission, then
potentially you could be sued. If it is a blatant case of fair use, a
judge could throw the case out immediately. I don't know that the
uses you describe are that clearly fair use, though.
Second question: would you win the lawsuit? I really can't answer
that, as I cannot give legal advice. In my layman's opinion,the
copyright holder would likely be willing to settle for an amount far
less than the cost of going to court. Other than that, it depends
greatly on the type of self-advertising you're doing (ie. is it of a
commercial or non-profit nature, how large is the audience of this
advertising, etc).
Lastly, would the copyright holder bother to sue you at all? Again,
in my layman's somewhat-informed opinion, it depends on the exact
situation. If you use the song on a website, your infringement is now
publically visible, potentially easy to find via a web search, and the
infringement can very easily be pinned on you. If a copyright holder
knows you have infringed, they are in a sense obligated to ask you to
stop, because if they don't it could be held against them if they try
to take a similar case to court later.
If you are unsure, it might be easier than you think to simply ask the
copyright holder for permission. Draft up a request with very
detailed specifics of the limited right to copy you are asking for,
and they may allow you the right.
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