Posted by Mr. Q at 6:00 AM Friday, July 5, 2013
Dear Rich: I am working on a "for profit" project to create musical exercises for instrumentalists. Part of this will be to use a "snippet" of a popular song as the basis of the exercise. In one case, this is one measure of the guitar part with no reference to the lyrics or the greater song. The exercise would introduce some slight variations on the pattern and then would then transpose the pattern in each key. Would this be considered "fair use" since I'm building a "new work" from this very small kernel of a previously published and performed work? I've learned from your blog that providing an acknowledgement of the composers, the song name, and the album the song originally appeared isn't a factor, but I'm planning on doing that anyway. As you may be aware there are two copyrights on music recordings. One is the sound recording copyright (the recorded performance), usually owned by the record company; the other is the songwriting copyright for the song (the chords, melody and arrangement -- basically what you see on the sheet music). If you're using a snippet of the original recording -- for example, a segment from a Jimi Hendrix recording -- it's possible (though unlikely, as we'll explain) you could be liable for infringing both copyrights. If you've recreated the segment by recording it yourself, you've reduced your liability somewhat because there's one less entity that might hassle you -- the record company that owns the original recording -- although you still may be hassled by the song owner. (You can read more about sampling here.)
Fair use. We think that the smaller the size of your snippets, the stronger your fair use argument. We're not sure about the rest of the factors ... and we're not sure that you're actually transforming the work or building a new one. Transpositions and retiming of a sound wave are likely to be viewed as superficial transformations (and the variations could be perceived as derivative infringements).
The reality. We can point you to a few cases ... one that says that any use of a sound recording is an infringement (we think that's an aberration), and one that says that just sampling a short segment of the song copyright may be excusable as a fair use (you can read about both in a previous entry). But we don't think either case really offers much guidance. As usual, it really comes down to whether record companies and music publishers discover your use and care (or are too busy pursuing pirate sites to go after your business). After all, zillions of YouTubers are offering similar styled guitar lessons without apparent hassle. If you're concerned about the risks, we'd suggest building your project in steps ... post a few lessons at a time. If you get a cease and desist letter from someone, take down that lesson instead of trying to fight it.
P.S. And check out our video above to learn Bruce Anderson's great guitar/sitar solo.