Fair Use Quotation of Lyrics?

[kennethml224]

Does anyone here know if quoting a very limited portion of a song's lyrics can fall under fair use (as opposed to using a recording for part of the soundtrack)? In two different potential projects, I would like to do the following:

1. Have one character hum/sing the beginning and another hum/sing the end of the following:
A. "Telling the truth can be dangerous business."
B. "Honest & popular don't go hand in hand"
-From the movie "Ishtar"

2. Have on character hum/sing ONE of the following:
A. "If you go out in the woods today, you're sure of a big surprise..."
B. "If you go out in the woods today, you're sure of a big surprise. Beneath the trees where nobody sees, they hide and seek wherever they please. Today's the day the teddy bear's have their picnic."
-From "Teddy Bear's Picnic" (not sure of author, I'm guessing that option B might be a bit much to fall under fair use)

I've noticed something similar was done in the movie "Book Of Eli". The character Eli quoted one or two lines of a Johnny Cash song and attributed them to Cash. Does such a thing fall under fair use or require licensing?

 

[keir64]

I think 'Teddybears Picnic' is in the public domain, so that should be fine.

Also, as for the others, I guess I'd just make sure to credit the lyrics to their owners!

 

[GuerrillaAngel]

can fall under fair use

Absolutely not.

Fair use is for news or RESEARCH purposes, NOT for making money. If you plan to make money with your film (forming a LLC is a clear indication of this), then you cannot claim "fair use", period.

Doc filmmakers walk a very thin line. At one end, non-profit entity making a project for educational use can claim "fair use" for some of the material, while at the other end, a doc like the ones Michael Moore does have to pretty much clear everything, with teams of lawyers weighing in on material they've unable to get direct clearance on.

Its simple as this: Hope/plan to make money? you can't claim "fair use."

-------

As for humming a few bars of a non-public domain song? You might as well have an entire band -- you still have to pay for usage.

Sorry.

Good luck though.

 

[CamVader]

Absolutely not.

Fair use is for news or RESEARCH purposes, NOT for making money. If you plan to make money with your film (forming a LLC is a clear indication of this), then you cannot claim "fair use", period.

Doc filmmakers walk a very thin line. At one end, non-profit entity making a project for educational use can claim "fair use" for some of the material, while at the other end, a doc like the ones Michael Moore does have to pretty much clear everything, with teams of lawyers weighing in on material they've unable to get direct clearance on.

Its simple as this: Hope/plan to make money? you can't claim "fair use."

-------

As for humming a few bars of a non-public domain song? You might as well have an entire band -- you still have to pay for usage.

Sorry.

Good luck though.

+100

 

[Zensteve]

I've noticed something similar was done in the movie "Book Of Eli". The character Eli quoted one or two lines of a Johnny Cash song and attributed them to Cash. Does such a thing fall under fair use or require licensing?

That was almost certainly under license.

Just because they don't mention how much they paid, in the credits next to the attribution, doesn't mean they didn't.

 

[JoshL]

Absolutely not.

Fair use is for news or RESEARCH purposes, NOT for making money. If you plan to make money with your film (forming a LLC is a clear indication of this), then you cannot claim "fair use", period.

Doc filmmakers walk a very thin line. At one end, non-profit entity making a project for educational use can claim "fair use" for some of the material, while at the other end, a doc like the ones Michael Moore does have to pretty much clear everything, with teams of lawyers weighing in on material they've unable to get direct clearance on.

Its simple as this: Hope/plan to make money? you can't claim "fair use."

Bit of clarification here. It's not just non-profits (though non-profit stands a better chance of getting a fair use judgement in a court), and news and research are only two uses for fair use. Commentary, criticism and parody are also viable fair use routes. That's where it becomes relevant for documentary work (though, as you say, Mr. Moore has scores of lawyers. He can afford it). Some basic info at: http://www.copyright.gov/fls/fl102.html

Furthermore, most judgements in favor of fair use tend to to be criticism/parody/etc of the ORIGINAL PIECE, not the subject matter that the piece was about. To quote an example from Wikipedia:

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie", Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[3] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory

Note that in both of those cases, the work was a for-profit work, but the court ruled based on intentions. The wiki page on fair use is interesting: http://en.wikipedia.org/wiki/Fair_use (like any wiki page, a good summary, but double check sources and facts)

Fair Use (and copyright in general) is a complex beast. Any fans of Negativland around here? While they are absolutely in favor of infringing, their legal accounts are very interesting, particularly the U2 case (doubly so when they actually spoke to the band about it, who were at the time, doing pretty much the same thing but with video).

But at the end of the day, as I'm sure you'd agree, best to not get the lawyers involved, and none of that is relevant to the OP's question. As a creator, I believe copyright is a good thing (don't want people repackaging my work and making money without compensating me), but as someone interested in the public domain (folk and traditional music, for example) and the concept of creating something new from something old, fair use is important too.

 

[kennethml224]

Absolutely not.

Fair use is for news or RESEARCH purposes, NOT for making money. If you plan to make money with your film (forming a LLC is a clear indication of this), then you cannot claim "fair use", period.

Doc filmmakers walk a very thin line. At one end, non-profit entity making a project for educational use can claim "fair use" for some of the material, while at the other end, a doc like the ones Michael Moore does have to pretty much clear everything, with teams of lawyers weighing in on material they've unable to get direct clearance on.

Its simple as this: Hope/plan to make money? you can't claim "fair use."

-------

As for humming a few bars of a non-public domain song? You might as well have an entire band -- you still have to pay for usage.

Sorry.

Good luck though.

Thanks. Your explanation and JoshL's made it pretty clear. I didn't realize that fair use didn't apply to commercial projects (with the exception of news, parody, etc). I'll check the public domain status of Teddy Bear's picnic, though; I had no idea it might be that old.

 

[GuerrillaAngel]

Josh, I kept my answer simple because like you said, its a complicated beast. And you're right, parody is a common example.

 

[GuerrillaAngel]

Thanks. Your explanation and JoshL's made it pretty clear. I didn't realize that fair use didn't apply to commercial projects (with the exception of news, parody, etc). I'll check the public domain status of Teddy Bear's picnic, though; I had no idea it might be that old.

You were smart enough to inquire about it, so you're on the right track as a filmmaker. Good luck to you.

 

[keir64]

Yeah like I said, a few minutes of Google led me to the impression that Teddybears Picnic is in the public domain, in one form or another anyway, so I'm guessing that will be fine? Not an expert though. Let us know how you get on!