opinion

Fair Use of Music in Clips

Fair Use of Music in Clips

Copyright protects the rights of creators of artistic works, including (without limitation) music. This means that typically, only the copyright holder may reproduce or synchronize a song, which includes performing the song, incorporating the song as background music or using the song as a soundtrack, etc. in a video. If you are a clip artist, you may have found one or more of your videos removed or blocked from digital content-sharing services (clip sites, tube sites, social media, etc.) after claims of infringement of copyright on included music. Let’s dig in here to what’s going on and what your options are.

Music is covered by copyright in multiple ways. The composition (i.e. melody and words) is subject to copyright, and a recording of the song (e.g., the radio version sung by a big pop star) is subject to a separate copyright. These copyrights may be owned by the same person or entity, or by different ones.

In light of the uncertainty about what actually constitutes fair use, digital content-sharing service providers are afraid of consequences if they don’t remove content when there is a copyright infringement claim.

These separate rights make for multiple ways to become entangled in an infringement claim. For example, if you are singing a song in a clip, the owner of the copyright in the musical composition could make a claim. If you are dancing to a recording playing in the video, the owner of the composition as well as the owner of the recording could make claims.

“Fair use” is an exception to copyright law. It allows a third party to use copyrighted material of another under particular circumstances. Fair use is a complicated topic, and would require a lot more space than we have here to discuss fully. In summary, though, keep in mind the following: in order for a use to be considered fair, it must be transformative — change the nature of the song in such a way that it has new expression or meaning. It must be for educational, news reporting, commentary, parody or other specific themes outlined by law.

For a use to be fair, the amount of the song used must also be reasonable (usually, the less used, the better). Unfortunately, there is no hard line delineating how much is reasonable. If you’re using a 20-second portion of a four-minute song, in your 15-minute clip, it is possible for that to be a fair use. If you’re using a full four-minute song in a five-minute clip, then that becomes more questionable. This is especially true because a person can play your video to hear the full song instead of buying the original recording of the song, which denies the copyright holder the profit they would have otherwise made.

On the topic of profit, money always matters. Use of copyrighted music in a clip made for charitable purposes is more likely fair than in a clip made to earn revenue for a private interest. For example, if a clip is made for the entertainment of users, from which the clip artist pockets the revenue, the use is less likely fair than a clip made for a non-profit public interest purpose, such as to make a statement on sex worker rights.

Under copyright law, in certain instances, digital content-sharing service providers can be held liable for the infringement of third-party users on their websites. This means that a service provider can be responsible for a user uploading infringing content to its site. However, the “Digital Millennium Copyright Act” (DMCA) provides a safe harbor. In short, if the service provider swiftly removes the content after receiving a complaint in proper form from the copyright holder, the service provider will usually not be liable for the copyright infringement of the user.

In light of the uncertainty about what actually constitutes fair use, digital content-sharing service providers are afraid of consequences if they don’t remove content when there is a copyright infringement claim. The DMCA incentivizes such services to remove content, or block it in the U.S., following a complaint — even if there is potentially fair use. This is because when service providers remove the content, the DMCA exempts them from potential liability in the case that it’s not fair use. So, service providers think, “Why risk it?”

For clip artists, this is a very frustrating set of realities. It’s also going to get even more difficult because of the newly minted “Article 17” (formerly known as “Article 13”) of the EU Copyright Directive, which changes the game in Europe. In Europe, “fair dealing” is similar to fair use in the U.S. In short, Article 17 requires that within the next two years, member states of the EU pass laws that not only require digital content-sharing service providers to remove content in response to a complaint, but also require that they actually prevent infringement from happening on their websites altogether. This is definitely something for clip artists to watch.

So, the “million dollar question” becomes: How can a clip artist avoid removal or blocking of their videos? I understand that it doesn’t sound optimal, because sometimes you want a popular song, but consider using stock music you can license from online services. In some cases, you may have to pay a small fee, or in others, the songs are free. Just check the terms of use or the “license” ahead of time for how you can use the music, and to make sure that it doesn’t prohibit use in pornographic content.

Alternatively, you can try to use the music in a way that potentially constitutes fair use. If you’re good at audio editing, you could make a mash-up of portions of various songs. Using 15-second pieces of 10 songs, for example, might be considered transformative and fair. If you’re creating a parody, for example, by singing the melody of a copyrighted song, replacing the original words with alternate words that parody the song, that might be considered a fair use. If you play a three-minute song in small increments (for example, 20 seconds at a time) and give commentary on the song at each interval, that might be considered a fair use. Although these ideas maybe don’t sound sensual in theory, I’m sure talented clip artists could find ways of making them sexy on film!

If you do use portions of copyrighted music, and your content is removed or blocked in response to a DMCA complaint, you have the opportunity to respond to try to get the content reinstated. You can reply with what’s called a “counter-notice” if you believe your use is fair or that the removal/blocking was wrong for another reason. The service provider may repost or unblock your content, but even if it does, this may lead the copyright holder to sue you in court for infringement, exposing you to possibly having to pay money damages.

Fair use is a complex concept to work within the confines of. The fair use exception to copyright was developed to balance the goal of protecting copyright holders with the goal of encouraging free dissemination and expression of ideas. So, keep creating… just try as much as possible to avoid using copyrighted music (and other copyrighted materials) to keep your path clear as you work your way to higher visibility and profits in the clip world!

Disclaimer: The content of this article constitutes general information, and is not legal advice. If you would like legal advice from Maxine Lynn, an attorney-client relationship must be formed by signing a letter of engagement with her law firm. To inquire, visit SexTech.Lawyer.

Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC, having offices in Albany, New York. She focuses her practice on prosecution of patents for technology, trademarks for business brands and copyrights for creative materials. Through her company, Unzipped Media, Inc., she publishes the Unzipped: Sex, Tech & the Law blog at SexTechLaw.com and the Unzipped: The Business of Sex podcast at BusinessOf.sex.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

profile

VerifyMy Seeks to Provide Frictionless Online Safety, Compliance Solutions

Before founding VerifyMy, Ryan Shaw was simply looking for an age verification solution for his previous business. The ones he found, however, were too expensive, too difficult to integrate with, or failed to take into account the needs of either the businesses implementing them or the end users who would be required to interact with them.

Alejandro Freixes ·
opinion

How Adult Website Operators Can Cash in on the 'Interchange' Class Action

The Payment Card Interchange Fee Settlement resulted from a landmark antitrust lawsuit involving Visa, Mastercard and several major banks. The case centered around the interchange fees charged to merchants for processing credit and debit card transactions. These fees are set by card networks and are paid by merchants to the banks that issue the cards.

Jonathan Corona ·
opinion

It's Time to Rock the Vote and Make Your Voice Heard

When I worked to defeat California’s Proposition 60 in 2016, our opposition campaign was outspent nearly 10 to 1. Nevertheless, our community came together and garnered enough support and awareness to defeat that harmful, misguided piece of proposed legislation — by more than a million votes.

Siouxsie Q ·
opinion

Staying Compliant to Avoid the Takedown Shakedown

Dealing with complaints is an everyday part of doing business — and a crucial one, since not dealing with them properly can haunt your business in multiple ways. Card brand regulations require every merchant doing business online to have in place a complaint process for reporting content that may be illegal or that violates the card brand rules.

Cathy Beardsley ·
profile

WIA Profile: Patricia Ucros

Born in Bogota, Colombia, Ucros graduated from college with a degree in education. She spent three years teaching third grade, which she enjoyed a lot, before heeding her father’s advice and moving to South Florida.

Women In Adult ·
opinion

Creating Payment Redundancies to Maximize Payout Uptime

During the global CrowdStrike outage that took place toward the end of July, a flawed software update brought air travel and electronic commerce to a grinding halt worldwide. This dramatically underscores the importance of having a backup plan in place for critical infrastructure.

Jonathan Corona ·
opinion

The Need for Minimal Friction in Age Verification Technology

In the adult sector, robust age assurance, comprised of age verification and age estimation methods, is critical to ensuring legal compliance with ever-evolving regulations, safeguarding minors from inappropriate content and protecting the privacy of adults wishing to view adult content.

Gavin Worrall ·
opinion

Account-to-Account Payments: The New Banking Disruptor?

So much of our industry relies upon Visa and Mastercard to support consumer payments — and with that reliance comes increased scrutiny by both brands. From a compliance perspective, the bar keeps getting raised until it feels like we end up spending half our time making sure we are compliant rather than growing our business.

Cathy Beardsley ·
profile

WIA Profile: Samantha Beatrice

Beatrice credits the sex positivity of Montreal for ultimately inspiring her to pursue work in adult entertainment. She had many friends working in the industry, from sex workers to production teams, so it felt like a natural fit and offered an opportunity to apply her marketing and social media savvy to support people she truly believes in and wants to see succeed.

Women In Adult ·
opinion

Understanding the Latest Server Processors

Over the last decade, we mostly stopped talking about CPU performance. Recently, however, there has been a seismic and exciting change in the CPU landscape, due to innovation by a chip company called Advanced Micro Devices (AMD).

Brad Mitchell ·
Show More