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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Im planning on having my own radio show for political talk

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I'm planning on having my own radio show for political talk on the internet this fall going livestream. My Question: Do I need a BMI or ASCAP music license to play short music clips on my intro's, commercial breaks and exits?

Issue

 

You wish to "play short music clips on my intro's, commercial breaks and exits" Such music is covered by copyright. Do you need permission from the copyright owner to use short clips?

 

Background Law

 

"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).

 

ANSWER

 

Where there is (i) ownership of a valid copyright and (ii) unauthorized copying, there is copyright infringement.

 

The question becomes, is there a defense to prevent a successful copyright infringement claim?

 

For your case, assuming valid copyright (i.e. song not in the public domain) the only viable defense would be your use is "de minimis".

 

“De minimis” use is a defense that admits copying but claims that the amount taken is so small that it makes no difference. So how much copying is too much?

 

There are no bright line rules. Each case is resolved on its own facts. There are cases where the copying of as little as 3 notes lasting 2 seconds from a song was considered neither fair use nor de minimis.

 

Thus, using short clips of copyright protect songs without permission is risky.

 

Additionally, even if your use of a short clip is ultimately considered de minimis, you may have to prove such via defending yourself in court. Intellectual Property suits are expensive and a "win" in court may not feel like a win and can hurt as bad as a loss.

 

That said, I suspect what is most likely to happen is that you will receive a letter from the copyright owner demanding you stop using "their song" even if your use qualifies as de minimis. Such a person is unlikely to actually sue, if you stop using the song, as it will be expensive for them to be wrong if your use is de minimis.

 

BotXXXXX XXXXXne

 

There is one bright like rule: If you get permission or obtain a license, you are safe.

 

Otherwise, there are no bright line rules and relying on a Fair Use / de minimis defense is risky.

 

CASE TO CONSIDER

(not about short song clips but short video clips)

 

Dyer v. V.P. Records Retail Outlet, Inc. (SD NY 7/24/08)

 

Dyer and Heart to Art Music sued VP for copyright infringement

 

. . . Because the three shots of Kelly in VP's commercial appeared to be taken from the video, the court found that the work in question was actually copied.

 

While only three shots from the video appeared in the commercial, these images filled most of the screen when they appeared and Kelly was clearly observable in them.

 

The shots of Kelly ran consecutively and together, took up almost three seconds of the one-minute video, or approximately five percent of the commercial's air time.

 

The three shots constituted all of the visual images in VP's commercial that promoted Kelly and his 2003 CD.

 

Under these circumstances, the court could not find that the amount copied was de minimis.

 

 

 

 

Customer: replied 4 years ago.

Well I did read copyright law and 3 consecutive appearances is definitely a violation of de minnis because these appearances were consecutive. I would only need about 30 seconds maximum of any or each clip, but it sounds as if copyright lawyers will try to press a claim on a case by case basis and there is no agreeable standard in the law. Is this correct?

"but it sounds as if copyright lawyers will try to press a claim on a case by case basis and there is no agreeable standard in the law"

 

You hit the nail on the head. You are correct that, since there is no bright line rule, lawyers/copyright owners will try to press a claim even where another's use is clearly valid/legal. If the copyright owner is well funded an the user is not so well funded the copyright owner usually "wins" the issue.

 

Thus, the risk is not so much you will be violating another's copyright but that you will have to pay large sums of money to prove you are not violating another's copyright.

 

That said, there is a good chance that you will simply get a letter demanding you stop using the song and if you stop the issue will likely go away (especially while you are just starting up and are not well known).

 

When your talk show becomes famous use some of the money to purchase a license for your lead music. Until then, you should be safe as long as you have a reasonable belief that your use was a fair use.

 

I will search for some copyright cases involving song clips and see how the issue was resolved. I did a quick search earlier but did not find any right on point. When/If I find some cases I will provide you with some citations.

Customer: replied 4 years ago.

Thank you! I'm not going to be up and running until this fall at least, so I have time. I look forward to what you have found and if I go with fair use, I'll limit my intro's to 15 seconds.

 

Question: I need to be clear on one point.

 

(a) Are you using the musical compositions of a song to create your own short clips of such song (like a cover song)?

 

Or

 

(b) Are you going to use short clips of a Sound Recording?

 

For example:

 

(a) would you generate you own 15 second version of "I Gotta Feeling". (i.e. a 15 second cover song clip).

or

 

(b) would you use the first 15 seconds of "I Gotta Feeling" sound recording by the Black Eyed Peas

 

 

(a) relates to a Musical Composition Copyright.

 

(b) relates to Sound Recording copyrights and

 

I understand you are referring to "(b)" for Sound Recordings. You wish to copy 15 seconds of a another's "sound recording".

 

Just note that some courts have ruled that the de minimus defense to copyright law does not apply to "(a) sound recordings".

 

In any event, I will look for cases to cite on both sides of the issue.

 

 

 

 

 

 

Customer: replied 4 years ago.

Well my question related to using a 15 to 30 second clip of a "sound recording" such as let's say an edit of 15 to 30 seconds of Culture Club "Church of the poison mind" for instance. If I generated my own version oif that with a tune generator, are we talking about two different things? Barry Young on KFYI AM 550 here in Phoenix for instance uses a maybe 45 second long soundtrack of "I can't get no Satisfaction" by the rolling Stones to open his show every morning and largely talks over it and fades it out quickly. I would be on Internet Radio not required to be FCC licensed, but my goal is to make it to taking my show to conventional radio as well. Thanks for all your help! You're really helping to clarify things! Duane......


"If I generated my own version of that with a tune generator, are we talking about two different things?"

Yes, there is a difference. Give me a little while to generate a more thorough response.

MUSIC COPYRIGHTS – BACKGROUND/BASIC INFO

 

Copyright can protect both Musical compositions and sound recordings.

 

A musical composition consists of music, including any accompanying words, and is normally registered as a work of the performing arts.

 

 

A sound recording results from the fixation of a series of musical, spoken, or other sounds.

 

 

Copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition.

 

 

Lyrics refer to the words of a song or other musical composition.

 

 

Music refers to the melody, rhythm and harmony of a musical composition.

 

It is important to note the difference between music (that is, the musical lines in a musical composition) and a sound recording (that is, the actual sounds of the musical work fixed in recorded form, for example, on a CD or digitally in an mp3 file).

 

 

Infringement

 

"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).

 

 

If one copies short song clips, there is no dispute that one is using/copying copyrighted material.

 

Therefore, copying short clips from sound recordings (songs) will be a copyright violation unless you have a defense.

 

 

§ 107 Fair Use to the rescue.

 

 

FAIR USE

 

17 U.S.C. § 107 : Limitations on exclusive rights: Fair use

[quote from statute]

 

 

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.”

 

The Copyright Act unequivocally establishes the four factors used to determine fair use: 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; (is the work so important it should be in the public domain – example: video of the shooting of JFK).

 

 

(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.

 

 

Your Facts

 

Fair Use Factor (1): your use of the short song clips is of a commercial nature (I assume you want your talk radio show to make money). Therefore, factor (1) leans toward unfair use.

 

 

Fair Use Factor (2): the Nature of the copyrighted work. Is the work so important that it should be in the public domain? No song is that important so this factor leans toward unfair use.

 

 

Fair Use Factor (3): amount copied; (i.e. substantial or de minimis). You will copy 15 seconds. Would be de minimis unless those 15 seconds is the “heart” of the work. Probably leans toward fair use.

 

 

Fair use Factor (4): effect on potential market; using short clips from a song is unlikely to hurt the market for such song; leans toward fair use.

 

Restated, with regard to using short song clips for a commercial use, fair use factors (1), (2), and (4) are not difficult to evaluate: (1) and (2) do not support fair use and (4) does.

 

 

Only fair use factor (3) is arguable. Such is why I previously stated the issue depends on whether or not the amount of copying would be considered de minimus. I skipped all the not so arguable issues and only addressed the one arguable issue.

 

 

Now, at least one jurisdiction has held that where copying of a song/video is admitted, fair use factor (3) is not an issue as the amount of copying is unimportant for a sound recording but would be important for a musical complication.

 

 

In any event, whether or not copying a short song clip would be a copyright violation depends on the specifics facts and I suspect short 15 second clips would not be a violation as fair use factor (3) would fall in favor of fair use and would likely carry the day.

 

 

Creating your own short song clip COVER is much more likely to be a fair use, and thus, not a copyright violation.

 

 

DMCA

 

Now, your Talk Show will be internet based. Thus, if a song owner has a problem with your using a short clip from his song, the likely response will be file a DMCA takedown request and get your ISP to shut you down.

 

 

Such DMCA takedown request will most likely fall under 17 U.S.C. § 512(c)(3)(A).

 

 

However, note 17 U.S.C. § 512(c)(3)(A)(v)

 

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

 

 

Note the phrase “good faith belief”

 

Though Congress did not expressly mention the fair use doctrine in the DMCA, as noted above the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107.

 

 

Therefore, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright pursuant to 17 U.S.C. §107.

 

 

Thus, an allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine can be the basis for a misrepresentation claim pursuant to Section 512(f) of the DMCA.

 

 

CONCLUSION

 

Again, using short clips of sound recordings is risky.

 

The only bright line rule is to get permission or obtain a license to use the clips.

 

 

Customer: replied 4 years ago.

Thank you for the effort clarifying this issue for me! I will use a tone or compilation generator to come up with my own cover music and intro music. As I brand myself and get name recognition and more sponsors, then I will pursue a license to use the material! Thanks for all your help. D Buell http://buellreview.com


Good Plan. Good luck with endeavor. I will check it out from time to time to see how it is going.

I assume this will be the link.

http://buellreview.com

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