There is this urban myth I hear all the time. “If I just “use a few seconds” of a song then it is fair use, and I do not need a license.” I deliberately chose the word “myth” because it is just that – a myth. As a very general rule, most use of music requires you to seek permission. As someone asked me at a recent training, “Well, can’t I just use 3 to 4 seconds during my intro and outro to my podcast and be okay?” It depends, but probably not. It is more likely that you DO need to seek music licensing than you do not. Someone should have told Kim Davis.
In yet another example, Kim Davis, the Kentucky clerk who refused to issue same sex marriage licenses, found herself on the opposite side of compliance with the law. This week her story unexpectedly intersected with music copyright law. As she left the jail Survivor’s “Eye of the Tiger” was playing to the crowd waiting for her with the television cameras stationed to capture the latest unfolding in her story. You can see clips of her release by visiting ABC’s website HERE. Just as quickly, members of Survivor spoke out saying permission was not sought nor do they want their music associated with her.
Is this the media misrepresenting an actual problem or is Kim Davis being painted in an unfair light due to her other problems? This is a problem. Any music usage, especially when staged, requires clearance. You cannot use someone’s music without seeking and securing the proper permission any more than you can use someone else’s car without permission.
The music is clearly staged. When Davis walked out someone made the choice to have the song cued up. The person hired for the music knew there would be film crews broadcasting and filming this event. The music was as much staged as a closing credit song in a film. Because of that, a music license was necessary.
The problem with Davis’s camp using the song is the same pot of hot water politicians tend to find themselves in when they “adopt a song” for their respective campaigns without securing permission. My favorite part of national elections is the inevitable copyright infringement of music that always seems to take place. When a new election season rolls around, someone will inevitably “forget” music licensing is necessary. The conversations in campaign headquarters, I imagine, usually go something like this:
Marketing Campaign Intern for Nominee: You know what song I really love? Let’s use Katy Perry’s “Firework” because of our candidate’s sparkly personality.
Person In Charge: Sounds great! Who wouldn’t want to be associated with our candidate?
For every song you hear, there are two copyrights on the song. There is a musical work copyright and the sound recording copyright. The musical work copyright protects the music and lyrics, the sheet music. The sound recording copyright protects the actual sound recording. Because there are two copyrights, then two permissions might be and are usually necessary, depending upon how you want to use the song. If one party says no, then permission is not granted to use the music.
Sounds time consuming and costly, right? It is time consuming, so start early. Depending upon how much and the way in which you want to use the music, it can also be expensive. If you are working for a campaign who wants to use music, then performing rights organization ASCAP even has a handy two-page document outlining what might be necessary. It even goes on to say that outside of copyright law there might be some other areas of the law to consider, such as right of publicity and possible endorsement. Outside of the music issue, artists (and sometimes their record labels) have a say in how their image/name/likeness is used. You can find it by going HERE.
The thing to remember is that artists are people too. Their work, while enjoyable and published to the masses, is still their work. They have a right to say how it is used, what products it is associated with and which politicians they want their creative product linked. Music does speak when words cannot, but if you cannot find the words make sure you secure the proper music licensing before using someone else’s material.
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