In this week’s installment of The Composer’s Guide, I’d like to broadly cover fair use: address some common misconceptions, look at a few examples, and offer some friendly (i.e., not-legal) advice.

Misconceptions abound about what fair use is and how it can be applied. I’m sure we’ve all heard many of the myths about what constitutes fair use of a copyrighted work: any educational use is fair use; use by non-profits is fair use; any non-commercial use is fair use. Or: so long as you only use 15 seconds or less of a recording or piece of music, it’s fair use; using 300 words or less of a text is fair use. These are vastly misleading oversimplifications of the truth.

A few quick examples can easily show the flaws in these lines of thinking: a teacher photocopying a book chapter by chapter and passing it out to her class week after week to avoid the school having to pay for 30 copies of the book is certainly not fair use. It may be educational, but the sole intent in this particular situation is to avoid paying for a copyrighted work (even if the text itself is in the public domain, chances are that the edition in question is still under copyright). A non-profit organization performing copyrighted works at its annual fundraising gala without paying the proper licensing fees: the cause may be a worthy one, but that doesn’t mean that the author should be automatically deprived of his licensing fee – especially when a simple request to the author may result in his waiving his fee or reducing it significantly.

Using a quote or audio sample of 15 seconds or less is a pretty arbitrary number to assign, especially if the sample used is the most recognizable part of the original work. Examples abound of songwriters sampling other recordings and getting the pants sued off of them because they were dumb enough to use a sample that was highly recognizable, and base their entire work around that single sample. 300 words is also ridiculous arbitrary. Consider a 100-word poem – would using all 100 words because it’s under 300 ever be considered fair use? Of course not.

These examples – and probably most misapplications of “fair use” – stem from the perception of fair use as a right. “Because of fair use, I have the right to use some portion of another creator’s copyrighted work without getting permission or compensating them in any way.”

In actuality, fair use can really only be determined on a case-by-case basis. There are a number of factors that can help to determine whether a particular use is fair use, but they don’t necessarily make any guarantees. According to the U.S. Copyright Office, those factors are:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

You can see where some of the myths come from – they take these factors and blow them out of proportion. The fact that your use of a work is non-commercial in nature may help decide in your favor that it is, in fact, a fair use, but won’t guarantee it. The fact that you use only a very small portion of a text in your work may help decide in your favor, but is that portion the most important part of the work you’re quoting? If the portion you quoted is the climax of the original work, and reveals “the twist” or the most important piece of information in the work, you’re likely not going to be able to call it fair use.

Hopefully you’re beginning to see that the claim of fair use is not a right, but a defense. By saying “this is fair use”, you’re putting yourself in a defensive position, admitting that you haven’t asked permission and probably don’t intend to.

This isn’t necessarily a bad thing. Obviously, arts scholarship requires that any works being studied be quoted. Commenting on or criticizing a copyrighted work is – again generally – a fair use, although there are still limits to what is acceptable, and they must be taken on a case by case basis.

Another generally accepted fair use is that of parody. If you take a copyrighted song and replace the words in such a way that you’re parodying the song itself, you’ll likely be able to claim fair use. Satire, however isn’t covered – so if you change the lyrics to lampoon a political candidate or comment on something other than the original work, you’re not protected under fair use.

You can see how muddy and confusing fair use can be. To further muddy the waters, I’m going to take an example from my own life and argue both sides of the issue.

A visual artist friend of mine used one of my scores last year to create a mixed-media work that in turn inspired a whole body of work. Now, let’s ignore the fact that she had my permission to use my score, and act for the moment as though she didn’t.

In this situation, I could argue that her use was not fair use. First, not only did she photocopy my score, she used my intellectual property as the basis for her own creative work. The mixed-media work directly used the written score. Because the work was created specifically to be shown in a gallery, the commercial nature of the work is a foregone conclusion (an artist doesn’t exhibit in a gallery unless they intend to sell – and the piece sold very quickly). The visual nature of the score was also a direct inspiration to the composition of the work. And because a cross-section of the work was used, rather than a limited portion of it, one could argue that a substantial amount was used.

On the other hand: My score is a representation of sound – the look and the engraving are intended to facilitate performance, and not to serve as a work of visual art, so the nature of my work doesn’t directly intersect with hers. The pieces of the score used – although photocopied – were small circular bits punched from the page, rendering the music virtually unrecognizable. And in addition to the confetti-like treatment, the colorization of the “dots” added another visual element of differentiation. The fact that the pieces were no bigger than hole punch confetti makes the use fairly unsubstantial. And the fact that her use of my score doesn’t affect the market value of my own work – either positively or negatively – rules out economic considerations. Also, even though my score inspired the piece – and ultimately the entire body of work, though it was only used in the one piece – any other score could easily have been used (and were in other works in the series), rendering the use of my score somewhat inconsequential.

This situation could be argued either way to varying degrees of effectiveness. Now, of course, my friend had my permission to use the score, so this is a purely academic exercise, but it shows how muddy the waters can be.

One of my favorite examples of how to approach fair use is Weird Al Yankovic. Weird Al is known for his parodies of pop songs, which falls squarely – unequivocally – under the umbrella of fair use. However, he makes a point of asking permission from each of the copyright holders before he uses their songs on his albums. He could forego getting permission, and stand back and use the argument that his songs fall under fair use, but by doing so, he leaves himself open to litigation. He may be “in the right”, but that doesn’t stop the artist from suing him, which is both time-consuming and incredibly costly. He avoids the issue entirely by asking permission in the first place. He eliminates all gray area, and saves himself the worry and potential expense and difficulty.

So that said, my friendly advice is this: when you want to use any portion of another artist’s work, ask permission first. If there’s the slightest chance that they may be unhappy with your use of their work, protect yourself and ask their permission before you even start. And if they say no? Move on. Walk away. Find something else to quote or sample or whatever. There’s nothing to stop you from doing it anyway and trying to claim fair use, but know that if you’re sued – you’re responsible. No one else.

You’re going to hear that a lot from me: You’re Responsible. You’re responsible for your own career. No one else. So when it comes to issues that affect you, you should educate yourself – know what you’re getting into, and be prepared.

You’ll likely encounter times when you run into issues of fair use – both in your own creative process, and in someone else’s – so you should know what your rights are so that you can handle the situation in a manner that is both knowledgeable and intelligent.

So I leave you this week with a few links that I think you’ll find interesting.

First, is a link from Stanford University Library’s site on Copyright & Fair Use outlining a bunch of thought-provoking examples of what is and is not fair use.

And second, two links from the blog of Weird Al Yankovic in which he discusses fair use and his policy on getting permission: The Gaga Saga and Gaga Update.

See you all next week to talk about Copyleft! In the meantime, do you have any fair use stories? I’d love to hear about them in the comments!

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