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).
"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.
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.
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.
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.
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.