Legal to just use a few seconds of a copyrighted song?

January 13, 2008 8:02 AM

Is there a certain number of seconds below which it is okay to use copyrighted music without permission?

I am in a sketch group that makes videos for the Internet. Sometimes we tag the endings with a short burst of music and a title card of our website. We also sometimes use short clips of music within the videos themselves. We will soon be "monetizing our content" (showbiz lingo has gotten a lot less fun), and want to make sure any new videos will be kosher for TV/internet sale later on.

I've heard that if you use less than 15/11/5 seconds, it's okay. But this may be a myth. Could anyone help confirm/debunk this (preferably with references)?

Thanks!

posted by Idiot Mittens to law & government (15 comments total)

I forgot to mention, we are in Canada.
posted by Idiot Mittens at 8:03 AM on January 13

This is the musical equivalent of 'fair use' for thumbnails (ie blogging of copyrighted images) in the image example, I assume, is it?

I don't have an answer, but I thought the reference may trigger someone's memory/knowledge.
posted by Brockles at 8:16 AM on January 13

Not a real answer to your asked question, but in the long run, it might be better/easier to have a musically inclined friend write you a short jingle. Free beyond the six-pack of beer you tip him or her, and yours to use forever.
posted by explosion at 8:28 AM on January 13

I should have added, we currently are friends with a few (IMO very good) bands and use their music sometimes. But we do comedy and sometimes to make a joke work it takes a very specific type of music.

A recent example would be the end of this video.
posted by Idiot Mittens at 8:34 AM on January 13

No.

This has been asked in various ways here, and the answer is always the same: No. There is no time limit under which you may sample without royalties and attribution (the latter is usually spelled out in the contract itemizing the former).

If you sample copyrighted music, you must pay royalties (there are fair use exemptions--news broadcasts, for example). More to the point, you will be making money from using someone else's work. Either pay the royalties, or as explosion suggested, have someone write for you as a work for hire.
posted by dirtynumbangelboy at 8:35 AM on January 13

As a composer and songwriter, I don't believe there is a definite answer to this enshrined in any law. It is, in effect, up to the copyright holder (or their representative) to sue if they feel their copyright has been encroached upon. Things are then looked at on a case by case basis, taking into account things such as (but not limited to):

- how much of the song used?
- is it detrimental to the potential market?
- is it defaming or damaging to the original material?
- is it part of a collection that's not meant to be separated, etc.?
- has the artist or copyright holder specifically asked not for their music to be republished (Metallica, etc.)

In terms of the US (I know you're in Canada), Stanford's Fair Use site lists a case where 15 seconds of a song was used and it was deemed fair use (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978)) but that doesn't guarantee that a similar lengthed segment of a piece of music used in a diferent (or even the same, one imagines) circumstance would be deemed fair use also.

All recommendations would be to be careful, to attempt to gain clearance if you possibly can and to be prepared to argue if you have to.
posted by benzo8 at 8:35 AM on January 13

This has been asked in various ways here, and the answer is always the same: No.

For the US. Assuming the laws are the same for Canada would be foolish.
posted by smackfu at 8:46 AM on January 13

As far as the US goes, a quick google search reveals:

The practice of using small segments of music without authorization to build or supplement a new composition (sampling) was dealt a blow when the Sixth Circuit Court of Appeals ruled that the use of a two-second sample was an infringement of the sound recording copyright. The court went further stating that when it came to sound recording there was no permissible minimum sanctioned under copyright law. (Bridgeport Music v. Dimension Films 410 F.3d 792 (6th Cir. 2004)).

So even two seconds is illegal south of the border.

In Canada, though, you have the tax on all recordable media that's supposed to be paying the record companies for infringing uses. Hopefully someone with more Canadian knowledge will chime in, but it strikes me as possible that it may be quite legal up there.

This is, of course, a guess, and you would be wise to consult an actual attorney in your area. Spending a few hundred bucks for a Real Legal Opinion, stating you can do this, would do a lot to cover your ass if you get in trouble.
posted by Malor at 8:53 AM on January 13 [1 favorite]

Escapist Magazine runs a series of funny, fast-paced animated video game reviews called Zero Punctuation -- each episode begins and ends with a short clip of a popular song that reflects the subject matter of the episode. ZP is reasonably prominent, and has not to my knowledge run into any legal trouble for the snippets, so I'd say that you should be able to do the same without being noticed.

But, as others said, talk to a lawyer if you want to be really sure. Being in another country may help, as I believe that Canadian copyright laws are more lax than in the US.
posted by Rhaomi at 9:33 AM on January 13

(this isn't an answer to the question as much as a clarification of a previous comment that isn't really an answer...)

In Canada, though, you have the tax on all recordable media that's supposed to be paying the record companies for infringing uses.

What you're referring to is the Canadian Private Copying Copying Collective (CPCC) levy, and section 80 of Canada's Copyright Act.

In Canada, a levy is paid on blank media (i.e. CD-R discs), and the Copyright Act explicitly permits private copying of musical works. The act limits "private copies" to copies of music made by somebody for their own personal use (i.e. you borrow a CD and rip a copy for yourself, or download a MP3 and put it on your iPod).

Section 80 of the Copyright Act explicitly forbids making copies that are to be sold, rented, distributed, communicated, or performed. As a result, it isn't much help to Idiot Mittens.

Really, this is a question that should be put to a Canadian lawyer with experience in Canadian intellectual property law.
posted by gwenzel at 10:46 AM on January 13

At least in the US, there is no de minimis protection for sampling, boneheaded, ludicrous, and moronic as that is.
posted by 31d1 at 10:53 AM on January 13

For the US. Assuming the laws are the same for Canada would be foolish.


*cough* Check my profile & location, please.

The answer is the same in both countries.
posted by dirtynumbangelboy at 2:37 PM on January 13

We had to read the DMCA in high school, and I seem to remember the only "fair use" for music like that would be considered for educational or journalistic purposes; i.e. using music as an example in a classroom, or playing a song and then reporting on something about it.

For your purposes, you'd definitely need to get licenses.
posted by joshrholloway at 3:47 PM on January 13

DMCA doesn't apply, josh, as the poster is in CANADA.
posted by dirtynumbangelboy at 6:47 PM on January 13

Thanks for the answers. Since we will have potential buyers in both Canada and the U.S., both sets of laws will be relevant. We will eventually ask a lawyer about this, but I wanted to make myself aware of the applicable laws beforehand. Lawyer's time = more money than we have.

Thanks!
posted by Idiot Mittens at 8:53 PM on January 13