Intellectual Property Law
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• You are making a Kickstarter video to raise funds for a Non-Profit 501c3 endeavor.
• The endeavor is a theatrical company to educate kids
• You want to use clips of former students singing phrases and favorite quotes from shows where they have performed copyrighted material.
• No full-length songs, just a few seconds.
The question is . . . Would the above Kickstarter using the song clips violate another’s copyright rights requiring permission from such copyright owner?
Answer: the risk of having issues is low, but not zero, in not obtaining permissions for the reasons stated below.
To answer the question one starts with the issue of what is copyright infringement
Copyright Infringement Maxims
"In a copyright infringement case, the plaintiff must show:
(i) ownership of a valid copyright and
(ii) unauthorized copying of the copyrighted work." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
First, in your case, you know you are using material for a work covered by a valid copyright; thus, (i) ownership is not an issue here.
Second, in your case, you are using/copying material from a copyrighted work. Thus, unless you have a defense, your desired act, if performed, would constitute actionable infringement. So you need a defense.
(1) Copyright invalidity is a common defense and can include that the work was not original, lacked copyrightable subject matter or that the P is not the owner of the copyright.
(2) Independent creation is a complete defense to copyright infringement although it is sometimes difficult for a D to prove independent creation.
(3) Admission of copying but…..
1. “De minimis” use is a defense that admits copying but claims that the amount taken is so small that it makes no difference. It is often coupled with a fair use defense.
2. Similar to de minimis is a defense that what was copied was not protectable, such as copying just the facts from a work and not protected expression.
(4) Fair use is one of the most commonly raised defenses.
(5) The other statutory limitations on the rights of the copyright holder also serve as defenses, §§ 108-122. These range from the library exception to limitations on performance and display to the satellite television limitations.
For your case, defense (3) and (4) are relevant. I will not go into the boring details unless you want me too, but using short clips of performances of your former students singing copyrighted songs is likely a De Minimis use AND a Fair Use.
Thus, the risk of being sued for not obtaining permission is very low, but not zero (people can sue for anything, including for dumb reasons).
If you wish, when you get your video completed, send me your kickstarter link before you publish and I will review it and give you more information.
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