![]() ![]() Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. The Music Law 101 series is provided by Coe W. We will continue on the topic of copyright law in our next Music Law 101 post, in which we will explain a “safe harbor” for Internet service providers. To be a parody, the Court made clear that the 2 Live Crew song was making fun of and commenting on Roy Orbison’s original song, and that it would have unlikely been a fair use if 2 Live Crew had just created a funny version of the song that was otherwise unrelated to the original song. In the leading music fair use case, the United States Supreme Court found that 2 Live Crew’s version of Roy Orbison’s song “Pretty Woman” was a fair use due to the fact that the 2 Live Crew version transformed and was a parody of the original song. Neither the noncommercial or promotional nature of a use nor the specific duration of a copy alone control whether something is fair use. It’s also a common misconception that it’s not a copyright violation if you copy, for example, only 15 seconds or 4 bars of a song. For example, it is a common misconception that it’s not a copyright violation if the individual doing the copying is not making any money, if the copy is branded as “Promotional Use Only,” or if the project is otherwise noncommercial. Unfortunately, there are no bright-line rules that apply when assessing whether something is fair use. the effect that the unauthorized copy has upon the potential market for the original song.the amount of the song that was copied and.the creativeness of the original song that was copied.whether the unauthorized copy is for commercial or noncommercial purposes.An important limitation is known as the doctrine of “fair use.” In determining whether an unauthorized use is a “fair use,” courts look at four factors: While music copyright owners have a great deal of control over how their musical works and sound recordings are used, there are some limitations that permit others to use copyrighted material without the approval of the copyright owner. In the event of a willful infringement, possible criminal penalties.Statutory damages (up to $150,000.00 for a willful infringement).Fair market value if the infringer had secured a license or the infringer’s profits.Liability can also be imposed on others who induce or encourage infringement (“contributory”), or who profit from infringement while declining to stop it (“vicarious liability”). One court refused to apply the de minimis concept and simply proclaimed that you should “get a license or do not sample.” Other courts will apply the de minimis concept in sampling cases.Ĭopyright infringement is “strict liability.” This means that an infringer does not have to intend to infringe to be liable for infringement. In fact, in lawsuits involving sampling, courts generally focus on whether the sample takes the heart or significant part of the original song, so even very short samples can often be illegal. Courts have found samples of less than 2 seconds in duration were illegal. With respect to sampling in music production, courts are split on the application of the de minimis concept. ![]() ![]() A use is de minimis if the average audience would not recognize the appropriation. Whether songs are substantially similar is often determined by a forensic analysis of the musical characteristics of each song.Ĭertain copying can be de minimis and not rise to the level required to establish substantial similarity. This analysis evaluates how much (quantitative) of the original work is copied, and whether the quality/character (qualitative) of expression is similar. The copy is “substantially similar” to the protectable elements of the original work.Ĭourts evaluate “substantial similarity” using a quantitative and qualitative analysis.To establish copyright infringement, you must establish that you own a valid copyright in the work and that: Anyone who violates the exclusive rights of the copyright owner is an infringer of that copyright. As we have previously discussed, the owner of the copyright in a work has certain exclusive rights in that work.
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