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What You Need to Know - Music Copyright and Video - Wild Bunch Media

Music Copyright and Video:

Have you shared a video on social media and it’s been taken down or blocked?

Not sure what music or sound effects you can use?

Want to know the best places to get royalty free music and sound effects?

If the answer is ‘yes’ to any of these questions then read on.

Music is an essential part in creating a ‘feel’ and identity to any video, but can you use a commercial track? When we are producing a video and we take care of royalty free music options. However discussing options with clients we realise it’s a bit of a grey area and there are all sorts of questions about price and choices.

In this article I quote US copyright law, however this information is still relevant if you live in Australia.

If you’re short on time and don’t want to read the whole article, the basic rule is most of the time you cannot use a copyrighted music in your video. Ask this question: “Am I inhibiting the original creator’s ability to earn money from this work?”. Whether or not the creator is making money from their work, you cannot inhibit their ability to do so.

 There are a couple of  misconceptions:

Crediting the artist and claiming you had no intention to violate copyright does not work.

“I can use up to 30 seconds” of a video or musical recording. There are no such rules.

What happens if you use a music with copyright on YouTube ?

First of all i should say i don’t recommend this. These days software will identify that your video has copyrighted music straight away, so there is no flying under the radar. There are four outcomes when a track is flagged on YouTube. It’s up to the music copyright holder (not the offender) to decide how they’d like to deal with the unlicensed usage of their music in YouTube videos. In order of severity:

  • Track the video’s viewership statistics
  • Monetize the video by running ads against it
  • Mute audio that matches their music
  • Block a whole video from being viewed

This YouTube clips is useful:

When IS it OK to Use Another Creator’s Music in Your Video?

It’s a complicated topic but if you want to use music that someone else has created then you’ll need to know the legal implications of doing so. Obtaining permission really depends on the specific piece itself and whether it needs a license or not:

  • In the purest sense, the only time that you do not need to secure special permissions to use a work is when that work is in the public domain. Some older works have made their way into the public domain and according to the Public Domain Information Project that includes: “Any Song or Musical Work Published in 1922 or Earlier is in the Public Domain in the USA. No Sound Recordings are PD in the USA due to a tangled complexity of Federal and State Law”.
  • If what you are using is not in the public domain, you WILL need to obtain a license to use it. The more formal the license the more protected you are when using it. Also keep it mind that many recordings have not only a copyright for the song, but also for the recording of the song itself. In that case, you will need to obtain two licenses.

Music that is Royalty Free is still free to use, but it is NOT in the public domain. There is a distinct difference between the two. Permission must still be granted for royalty free recordings. Generally, these permissions are usually blanket permissions that apply to anyone though and are very easy to obtain.

So you’ve heard of ‘fair use’? Does fair use give me free reign to reuse any material I want without getting permission?

No. “Fair Use” isn’t a magic phrase you can invoke to excuse your use of someone else’s creative work under any circumstances. To be clear: you can’t copy someone else’s work and then simply claim fair use.

What is considered “fair use” depends on the circumstances. To over-simplify for a moment, fair use protects creators who reuse copyrighted content in a few ways: when the new work directly critiques and comments on existing works; for educational or scholarly purposes; to transform the source material into something new. Of course, it’s a bit more complicated than that, so please read on before deciding whether you can claim fair use.

How is fair use determined? What are the “four factors”?

There is no simple formula or method to easily determine whether a particular use of a copyrighted work is a fair one.

The copyright statute gives us four factors to apply on a case-by-case basis:

  • -The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
  • -The nature of the copyrighted work.
  • -The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • -The effect of the use upon the potential market for or value of the copyrighted work.

The four factors are more than a checklist. They have to be analysed at an individual level and taken together as a whole, but they might be weighted differently depending on the facts of your particular case.

Courts use these factors to decide whether a particular use qualifies, but remember that they can only do so after you have been sued for copyright infringement. The burden of establishing the fair use exception always falls on the person asserting it; the copyright holder does not have to prove the lack of fair use. 

What do the four fair use factors mean?

The fair use factors are generally taken to mean:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
How are you using the copyrighted work?

If your use can be considered “transformative,” this factor will weigh in your favor.

In other words, does your video alter the original work to give it a new meaning or shed new light on it? Uses that directly appraise or comment on the original work are more likely to be transformative because they add a new meaning or message. On the other hand, are you using the material because you needed to put something in a particular scene and the copyrighted work happens to fit? Such uses will probably point away from fair use.

Your use doesn’t necessarily have to be “transformative” to qualify for fair use (although it definitely helps). Any use that furthers the public interest could potentially tip this factor in your direction. Parody, criticism, news reporting, scholarship, and commentary are all areas where courts have traditionally recognized fair use.

This factor also takes into account whether your use is “commercial” or “noncommercial.” Videos that seek to make money or promote a product or brand are harder to justify under this factor. While videos that are purely personal or for educational uses are weighted a bit more toward fair use, non-profit intent does not automatically qualify you for fair use.
  • The nature of the copyrighted work.
What type of copyrighted work are you using?

This factor focuses on the content that is being re-used. It weighs against fair use if the original work is highly creative (like a song, movie, or TV show), and will weigh toward fair use if the original work is less creative (like a phone directory, scientific data, or quotes from a historical record).
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
How much of the copyrighted work are you using? Is the portion you are using the “heart” of the original work?
 
Generally speaking, using a great deal of the copyrighted work weighs against fair use. Less extensive use generally weighs in favour of fair use. What is considered extensive depends on the total size of the copyrighted work at issue. There are no clear percentages or calculations that decide how much is too much or where fair use ends and copyright infringement begins. In addition, even relatively small uses can point against fair use if that small use is the “heart” of the work, such as a famous riff in a song or the climactic ending of a film.
  • The effect of the use upon the potential market for or value of the copyrighted work.
Can your use of the copyrighted work stand as a potential substitute for the original?

Uses that might negatively affect the market for the original work strongly weigh against fair use. Uses that have little to no effect will generally weigh in favor of fair use.

If people could watch your video instead of the original work, this factor is less likely to favor you. The point of fair use is to encourage the creation of more and better works of art, not to enable you to profit from works of others.

 

Important: Remember that there’s no formula for adding up the fair use factors. Different courts will interpret the factors in different ways. Claiming fair use always carries a certain amount of legal risk, but awareness of the factors above will help you decide whether you’re taking an acceptable risk.

How does Fair Use apply to parody?

Parody is an artistic work that imitates the characteristic style of another work for comedic effect or ridicule.

Because a successful parody needs to mimic the original, you can generally borrow more than with other types of uses. One important caveat: You can borrow only as much as you need to fully express the parody or clue in the audience to the joke. Parodies that borrow too liberally from the original may be legally problematic. (Plus, they’re less successful as parodies. Proceed with care!)

Whether a work is considered a valid parody under fair use also depends on the extent to which the new work adds elements that comment upon or criticise the original work. Works that use other works for the purposes of getting noticed don’t qualify. In the Supreme Court’s words, “uses to get attention or to avoid the drudgery in working up something fresh” will have a more difficult claim to fair use.

How much of a copyrighted work can I use under fair use?

There are not a lot of clearly defined rules about fair use. Thus, there are no rules such as “you can use up to 30 seconds” of a video or musical recording.

Does fair use apply to the background music in my video?

We strongly advise against using a commercial music recording as the background song of your video, particularly if you’re just looking to enhance the impact of your video. However, if the visual accompaniment to the song somehow “transforms” the original work to create something wholly new and unique, you may have a stronger claim to fair use.

What do you think of the track we used on this years showreel?

Best Sites for Royalty-Free Music to Use in Your Video

Royalty free is attractive because the legal responsibilities with it are completely minimized. It is the closest you can get to public domain, yet still retain some legal rights if you are the original creator. The nice thing here is that your music or work can become widely used and gain exposure for original creator, yet it benefits the community at large with a free service. These works are free and allow you to use them without penalty or fees.

I urge you to take a hard stand on this. Educate yourself and clients – even if you want a popular track in our video,  it’s really not in your best interest. Respect the time and talent that goes into creating artistic work, and you’ll also benefit yourself.

If you buy a music track on one of the websites below it’s worth keeping the receipt in case YouTube (or other) flag it and ask for proof of purchase. Each site may have some stipulations on the way in which you use the work, so be sure to read the type of license they grant. Some good examples of royalty free music sites are:

 

The Public Domain Project

YouTube Audio Library

Wild Bunch Music

The Music Bed

iStock

Pond5

Sources and Credit: Reel SEO, Vimeo, Premium Beat and YouTube

wbm team Sam

Sam Robinson, Director & Producer

Wild Bunch Media

Sam is a director and video strategy consultant specialising in video for social media trends, business, and the food industry.