Movin on Up - Use of Music | Print |
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Written by Phillip L. Harris   

A reader asks about the use of music in several situations:

During the opening of our newscast can we play music off of a CD we bought at a music store?

Yes, if you get permission from the copyright holders. The exact kinds of permissions you need are detailed in the “Rights” section at the end of this article.

But this would be for school use. I shouldn’t have to obtain rights under the Educational Fair Use regulations, should I?

Just because you are going to use it within a school building does not mean it is an educational fair use. Moreover, it is not a transformative use of the music either. The music was composed and originally recorded to be listened to and evoke some kind of “feeling” in the viewer. Presumably, you would be using the music (hopefully, it is up-tempo and important sounding) to excite your audience into paying attention to the program. This is not a transformative use of the music.

Our newscast has a music review segment where we would like to make comments about newly released music. Do we have to get copyright permission to play the music we are reviewing on the program?

No, but you need to make certain that the music you play is only a small portion of the entire piece. First, of all it would be bad journalism to play the entire piece of music. Typically, 10 seconds should be your limit. The following is very important: the portion of the piece you decide to play can NOT be what would generally be considered the “heart” of the song. The “heart” of the song would be the part that most people would have the lyrics memorized for on the second listening of the music. With some pieces of music the “heart” or most recognizable portion does not even have lyrics at all. For example, three sounds are all that is necessary to evoke a song in the audience’s memory. Foot stomp, foot stomp, clap will immediately make most people think of Queen’s “We Are the Champions.”

There used to be a game show on television called “Name That Tune” where the contestants would try to guess the title of a song after only hearing a few notes. “I can name that tune in 5 notes,” might be something a contestant would say. And then time after time regular people on this program would be able to guess the title of a song correctly. If a person could name a title correctly, it is because the notes were part of the “heart” of the song – the most recognizable portion of the song. The recording industry has won a lawsuit over the unauthorized use of only 15 notes of music!

Wait a minute! I heard that you can use 10% of a song without permission. What about that?

And Apollo drives his chariot across the sky daily pulling the sun behind him. In other words what you heard is a myth.

Necessary Rights

There are several different kinds of rights which must be obtained in order to use music other than that which you create yourself. There are several different kinds of rights that are necessary to do television programs. Thus the collection is called a “rights package.”

Different uses require different packages.

The major components of a package are listed below. Fortunately, when you contact the record label and give them all the information on your use of the music, they will be able to tell you what package you need to obtain. The various rights are as follows:

· Recording Rights: Permission to record the music if it is from a live performance.
· Re-Recording Rights: Permission to copy the music from a CD or cassette tape onto videotape. These rights are in the vast majority of packages of rights since nearly everything done in the video industry involves copying media from one storage form to another.
· Synchronization Rights: Permission to place video in synchronization with the music. In other words, you are adding video of something other than the creation of the music itself. This is the difference between radio and television: Pictures!
· Broadcasting Rights: Permission to broadcast the music to the public.
· Cablecasting Rights: Permission to cablecast the music to the public.
· Streaming Rights: Permission to stream the material on the Internet when the stream is set up so that it can not be downloaded or recorded.
· Transitory Digital Transmission Rights: Permission to place the material on the Internet in a format which allows for downloading and recording off of the Internet.

This article does not offer legal advice and nothing contained in this document should be construed as legal advice.The reader must always be aware that in this country a lawsuit can be mounted against an individual or a school for any reason - be it with or without merit. If a lawsuit is filed, then attorneys must be engaged and attorneys work for a fee. Even someone who successfull y defends against a lawsuit may still be confronted with attorney’s fees. The information here falls under the heading of general guidelines which, if followed, will result in a fairly comfortable degree of protection if litigation is brought.