Is licensing required to use an excerpt of a song within a recording? I'm currently recording a cover version of a song for inclusion on a compilation album which will be sold on Bandcamp. Because Bandcamp does not pay mechanical royalties, the organiser of the compilation (and owner of the Bandcamp account) is paying up front for the song licenses. However, I want to include excerpts from two other songs within my recording - it would be an entirely new recording by me with no samples, but there would be two lines from two different songs along with the recognisable melodies. The entire recording is around 4 minutes, the two excerpts are around 10 seconds each, so they are not a substantial part of the piece - it is not a 'medley', the excerpts are meant as homages The focus of this question is this : Would rights for all three songs need to be obtained, or just the 'main' song being covered? In answering this question I would appreciate if you would consider and explain: Could the small excerpts be considered 'fair use'? Does it make a difference that one of the excerpts is by the same artist as the main song being covered? As the original artist will be paid the appropriate licensing for the whole song, would this negate the need to paid / negotiated for the tiny segment of another of their songs? Although the compilation is being 'sold' on Bandcamp, 100% of the proceeds are going to a fundraiser to pay for a child's medical bills (NOT an official charity in any way)
Whether the use of excerpts from songs protected by copyright in the cover version of a different song is a &quot;fair use&quot; under US law is always a fact-driven question, and often there is no clear answer to fair use issues short of a lawsuit. One must remember that fair use is a specifically united-states legal concept, and that reproduction of such a cover version outside the US would not be protected by fair use, even if it was fair use under US law. Fair use is defined by 17 USC 107. That law spells out the four factors that must always be considered in any fair use claim. They are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. These have been explained and analyzed in several answers here on law.se, recently including this answer. In this case the commercial nature of the compilation probably causes factor (1) to lean against fair use. The creative character of the songs being used will cause factor (2) to lean slightly against fair use. That the use is for a charitable purpose might have a positive effect on factor (1), although it does not fit the &quot;educational&quot; purpose specifically mentioned in the law. I don't see how this would be in any way relevant to the other three factors, but it might influence the decisions of copyright owners. There is not enough information in the question to even approximate an analysis of the other two factors in this case. Note that the &quot;substantiality&quot; mentioned in factor (2) refers to how much of the source work is used, not how large a part of the resulting work it forms. Note also that there is a wide range of what has been acceptable here. In one famous case (Harper v Nation Enterprises) some 300 words of a 500 page book were found not to be fair use because they were held to be the &quot;heart of the work&quot;; in that case there was also a substantial market effect. One might want to consult a lawyer with expertise in copyright and music to get a better idea if the specific use seems likely to be a fair use. Alternatively, one could ask the copyright owners of the works of which excerpts are to be included if a license can be obtained. Some owners will in some cases provide licenses for a small fee or even for no fee if the source is properly acknowledged. Others will not. Licensing of one song by a given artist does not affect whether use of another song by the same artist is or is not fair use, but it might influence the willingness of that artist to license the second song on favorable terms.
Yes it's illegal. Just like singing/whistling happy birthday in public (used to be) illegal. You could be sued for untold amount of damages that could ruin your life forever (in theory). If you whistle a mashup remix then it's legal as long as it's different enough from the original that you can't tell that they are the same song anymore. Yes anyone can sue you if you piss them off. Disney doesn't sue all the people who sing covers of their songs because it's bad for business to piss off your fans, but they can sue if they feel like it. This is more common sense than anything else but I suggest you look into fair use copyright law since there is a lot of misconception about it. https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
They wouldn't need to keep samples, just the fingerprint. So they could send a guy with a laptop to Japan, download all the songs, fingerprint them, and take the fingerprints back home. It's not a problem, but it would be expensive. I suspect that US and European record companies will make the music available to them for free, otherwise they'd have to pay 20-30 million dollars for 20-30 million songs. The Japanese record companies wouldn't, so while it is technically and legally possible to collect the fingerprints, it would be expensive. And what is the benefit? We are talking here about music that you cannot legally own, that you cannot legally buy after the software recognised it, so there is very little incentive to spend that money.
It does. Youtube has a service where copyright owners of music can monetize infringing videos such that ad revenue goes to the copyright holder rather than the uploader. Alternatively the copyright holder can choose to have the video stripped of the music or taken down. In all other cases, the copyright owner simply isnt bothered to employ people to find illegally uploaded copies of the music
As for the subject matter (what can be protected), amplitude, frequency, harmonic pattern, duration etc. are all physical facts, and there is no protection for physical facts. The basic requirement is that the thing protected must be "creative". Once you have a creative composition (assuming it is a composition, where infringement is harder to establish), the question arises whether a particular other composition infringes, or is an independent creation deserving its own protection. Again, the law does not deal in technical acoustic properties, and "similarity" is dealt with in an essentially subjective manner. The find of fact, who is an ordinary observer, has to weight all of the evidence and decide whether there is substantial similarity (or striking similarity) which could be evidence of infringement (substantial similarity is not against the law, copyright infringement is). Both parties to the litigation will present testimony supporting their contention and refuting the others' contention. At some point, one side is likely to introduce expert testimony to the effect that there are only so many possible melodies, which if persuasive can overcome a feeling that two compositions are rather similar. The law only addresses the logic of that judgment, and not the scientific facts. For example, in the case of Testa v. Janssen, the legal premise is set doen that "proof of direct access is unnecessary where striking similarities between two works are present". HOw then do you know if there are striking similarities? To prove that similarities are striking, plaintiffs must demonstrate that "such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source." Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y.1973) citing a previous ruling on that point. Ultimately, the courts cannot not dictate a scientific procedure for making that determination.
If the typography is a significant aspect of the overall art of a song title - wherever the song title may be reproduced, i.e. poster, CD cover, etc. - than I'd say that's part of the copyright of the artwork as a whole and not simply the title, and is under copyright. Further, individual type faces can be under copyright themselves. And band names can be trademarked; you will need permission to use the name for products and advertising, since using the name will imply an endorsement from that band.
There seems, to my ear, to be a degree of similarity between the first two works. The third does not sound, to me, very similar to either of the first two. That is not a legal question, and I am no expert. However, all of these seem to be simple themes of only a few notes, repeated, in one case with some variations. The history of music is replete with examples of short themes or figures duplicated without intentional copying. Generally, to win a copyright suit over a claimed infringement of a musical copyright one must show either proven direct copying, or identity of melody over a long enough passage that independent invention is not plausible. Normally access of the alleged infringer to the claimed source is also shown. How much identity is needed is a judgement call for the court involved, often based on expert testimony, but I rather doubt if the short themes linked in the question would be found to infringe one another. In any case, even if identity is proved, it is possible that both are copying some earlier source, perhaps one in the public domain, or one properly licensed. It is also possible that one of thee has obtained a license from another and so is perfectly legal. There is no way to know without the records of those involved.
In the United States, when you distribute a recording of a nondramatic musical work, the law grants a compulsory mechanical license allowing anyone to cover the song provided certain formalities are observed, and royalties are paid to the original artist. See 17 U.S.C. sec. 115. If your song falls under this section, then all that is required for your friend to cover it is to give you notice and to pay royalties as provided by the applicable statutes and regulations. Of course, you are free to negotiate other terms if you want to. But your song can be covered even if you don't.