My Voice, My Choice
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Who benefits from Fair Use?
You do. Society does. Specifically, Fair Use can never apply to a commercial venture of any kind. Fair Use provisions are in place to provide access and public display for purposes of:
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This doesn’t mean that you can use “Thank God it’s Friday” as the theme song for your high school yearbook that you sell to the student body for costs or give away to students at taxpayer or school fee expense. It also does NOT allow the showing of "Lord of the Rings" as a Friday bonus to classes that have done well in their schoolwork. In fact, the law is specific on this particular issue. Showing copyrighted video for purposes of entertainment at church or school functions, whether admission was paid or not, is illegal.
It DOES mean that if I want to duplicate and stream a small section of a song for purposes of demonstrating my point in this article, I can do so as it’s part of commentary. It also means that if I want to stream a selection of Marilyn Manson’s* lyrics to demonstrate how dirty words can now be heard on public airwaves, I can do so as a criticism, news report, or commentary.
Fair Use also permits schools to record news shows such as CNN and other news reporting broadcasts but the recordings are only permitted for 10 days following the broadcast. Without specific permission, recordings must be erased 10 school days following the broadcast. (Some educational shows such as "School House Rock" offer "enlightened" rights that allow for up to three years archival. Professional Librarians are trained to be aware of these laws and will erase tapes accordingly.)
Fair Use is an extremely complex maze, but the predominant intent of Fair Use is to allow for social benefit of the masses without impinging on the rights of the copyright holder. Fair Use in itself is a monster novel in it’s presentation, so only the slight surface descripion is mentioned here. Fair Use almost never applies in a corporate, wedding, documentary, or feature film setting.
There are some extreme circumstances in which Fair Use might allow for use of copyrighted works in a commercial project; I recommend seeing an attorney before ever moving ahead on assumption. You’ll most likely find that the expense of the attorney outweighs the value of the answer. Be sure you consult a copyright counselor. Copyright lawyers/intellectual properties attorneys are a different breed, and they won’t shoot from the hip like many mainstream attorneys.
OK, so I can't use this stuff without a license or a Fair Use exemption. So what is a license? What do they mean, and who gets the money? What do the licenses cover?
Here are some licensing terms that you'll likely run across, and maybe one or two you haven't heard of or thought about. The funds for a license are shared in various percentages by interested parties in the copyrighted work. Artists, publishers, labels, sidemen, producers, distributors...a bunch of people might have their hand in the pot when all is said and done. The issuance of a license from an interested party covers your use of the copyrighted work, and is essentially a specified, pre-determined permission to use the copyrighted work.
| "If you cannot protect what you own, you don't own anything." -- Jack Valenti, 2002 |
Mechanical -- Any mechanical device which embodies a performance, shall pay a royalty to the copyright holder. This is compulsory, and is determined in rate by an act of Congress. Hard drives, CD’s, VHS tapes, DV tapes, LP’s, cassettes, DVD’s, Mini-disks, Flash Memory, RAMdisks, etc all are subject to this royalty by law. Currently at statutory rates, it’s about 4 cents per 3 minute song on a 10 song collection/album, after admin fees are extracted (usually 15%). This is paid to the copyright holder regardless of who recorded the song. For instance the Lennon/McCartney tune “Yesterday” has been recorded by over 200 different artists. Each of those 200 artists pay a mechanical license fee to the publishing company assigned the administrative responsibilities by Lennon/McCartney. Don't you wish you wrote THAT song?
Publishing -- If I record a song written by another artist, then I not only pay mechanicals, but most likely will have to pay a publishing royalty. For instance, it’s not at all inconceivable that Dolly Parton* made more money on “I will Always Love You” than Whitney Houston* did, depending on the pub deal that is in place on that recording. Parton wrote the song and recorded it, but Houston took it from a mere hit to a smash industry-altering mega hit in “The Bodyguard.” Which brings us to the next license.
Sync/Synchronization -- This license permits the synchronizing of copyrighted or non-copyrighted images to copyrighted music. If you use “Saturday Night’s Alright for Fighting” as an underscore for your boxing video without paying a license fee, then you are in violation of denying sync licenses in addition to other licenses. There are times where even public domain works require a sync license, depending on where the original media stemmed from.
Home Use -- Just as the name implies, the video is for Home Use only, and may not be publicly broadcast or shown in a public setting. The majority of videos fall into this category. Any videotape or DVD bought at the local video store will likely fall into this category.
Public Presentation -- Again as the name implies, a license to display the video in a public setting such as broadcast, school event, church event, or other public performance.
(This is a small demonstration of the sorts of licensing issues that can become involved, and hopefully explains part of the expense of administering copyright licenses)
Blanket fee
Typically used for musical selections. One who pays a blanket fee has permission to use the musical selection the fee covers in an unlimited number of released projects and videos.
Source: ©2003 Douglas Spotted Eagle
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