How much of a song can i use commercially without paying royalties?

November 26, 2007 10:05 AM

How much of a song can i use commercially without paying royalties?

I write a commercial software for a non-us corp. Occasionally I like to throw in easter-eggs (hidden screens/areas) such as an image or sound byte. How much of a song or riff of a song can I use without paying royalties? What if it was used in an advertisement instead of an easter egg, would that change the answer? And how much is little enough? a note? a bar? a chorus? a theme?

posted by torpark to law & government (15 comments total)

IANAL, but I don't think you can legally do that at all.
posted by timeistight at 10:09 AM on November 26, 2007

i am not a lawyer. i work in public affairs, but not in broadcast. however, my friend in broadcast was complaining that she was only allowed to use 20 seconds of music for something. i'm sure you will get a better answer from someone else.
posted by thinkingwoman at 10:09 AM on November 26, 2007

I believe any commercial use would not come under 'fair use', and would need to be cleared and paid for. IANAL.
posted by Happy Dave at 10:11 AM on November 26, 2007

Commercial use? Zero percent.
posted by deCadmus at 10:12 AM on November 26, 2007

If you're planning on using the actual recording you can't use any of it without permission of the publisher and also the master rights owner. That goes for advertisements as well.
posted by gfrobe at 10:13 AM on November 26, 2007

depends on what it's intended use is.

for example, if you are sampling a piece of a song for use in another you'll have to 'clear' the sample. this can be cost prohibitive depending on who your backers are. the cost to clear a sample is usually on top of any moneys paid to the copyright holders... having assisted a friend with this process once before I can tell you that it can be painful. his first request was rejected so he had to re-do the song only for the second one to take over 6 months to be approved.

if you are using the song for non-profit purposes, to demonstrate a point, for example you can use a small snippet of the track (check your local laws for details) under fair-use provisions under the copyright act.

the bottom line is this - if you are using any part of a copy written song for monetary gain you'll likely have to pay up.

best thing to do is budget for a consult with a copyright lawyer.

cheers.
posted by spish at 10:13 AM on November 26, 2007

I think it would depend on the country in which you are publishing your software, and the country in which the song was originally authored.

You should look at the copyright law for those countries, and look especially for "fair use" or its equivalent.

(for example, in the USA, you should look at Title 17 of the United States Code, paying special attention to Chapter 1, Section 107.
posted by kidbritish at 10:17 AM on November 26, 2007

Kidbritish is correct. That section allows quotations from copywrited work (which is essentially what you are doing), but only "for purposes such as criticism, comment, news reporting, teaching ... , scholarship, or research." What you are doing is none of the above -- you are incorporating it as part of a product being sold. Advertising is no different -- it is not one of the allowed purposes.
posted by beagle at 10:23 AM on November 26, 2007

Great Fair Use resource.

In a nutshell, you have to meet certain criteria in order to qualify for a free fair use case -- for example, a parody of the work, a source of educational or newsworthy information, etc.

And how much is little enough? a note? a bar? a chorus? a theme?

Fair use cases are determined if you're using enough of the work to capture its subjective spirit. Again, in a nutshell, if it's at all recognizable to the average person as the original work, you must meet the proper fair use criteria.

One thing to note is that the majority of recognizable classical works (e.g. Beethoven's Fifth) are in the public domain, but a recording of someone playing this work is not (e.g. you plinking out Beethoven's Fifth on your piano is OK ... you using a recording of the New York Philharmonic doing it is not).
posted by Cool Papa Bell at 10:26 AM on November 26, 2007 [1 favorite]

Commercial use doesn't necessarily ruin a fair use defense (in the US, anyway) but laws vary based on, as mentioned above, the country you're in, the countries your software's published in, and the country the work was published in.

That said, if you ask this question in the US (and, probably, a lot of other countries), there's no set amount that's "allowed", and you're asking for legal advice... which you should really be getting from an IP lawyer.
posted by toomuchpete at 10:27 AM on November 26, 2007

Also, to add to kidbritish's post: reading the statute is only a start. Do not mistake statutes for the law.
posted by toomuchpete at 10:30 AM on November 26, 2007 [1 favorite]

Any definition of Fair Use using Seconds as a measure is only a rule of thumb and is not explicit in US copywrite law. Whether "something is actually fair use or not" is really a question of "Am I going to get sued or not?" even if you are following stringent Fair Use guidelines. Fair Use is a non-specific doctrine guided by something called the balancing test. It's up to the jurists based on several factors, one being exploiting of the original work (sans parody, criticism, etc). If I was a lawyer, and I most definitely am not, I could easily see a case made that your commercial use is exploitative -especially as an advertisement. Even with good intentions, it only takes a lawyer to make a claim that it's in violation even if you believe it's legit.
posted by yeti at 10:32 AM on November 26, 2007

As an update, the software I write is 100% free and open source, it is just produced by a for-profit company based out of the Caribbean.
posted by torpark at 10:33 AM on November 26, 2007

"Do not mistake statutes for the law."

What?
posted by bitdamaged at 10:35 AM on November 26, 2007

Bitdamaged - Statutes are only a starting point, case law often elaborates greatly.
posted by wuzandfuzz at 11:01 AM on November 26, 2007