licensing Fair Use

Hello,

I am looking for clarification about whether use of music in a documentary project constitutes fair use or not.

As I understand it, if you have a talking head commenting on a piece of music playing in a film then that is fair use.

At the opposite extreme, if a piece of music is used in a fiction film with no reference to it then that is not fair use.

But what if I am using the music of an artist in a documentary that is illustrated with footage related to the piece of music (e.g. a song about Denver set to shots of the city). Does this mean the work is transformed/commented on enough for it be fair use?

Any thoughts are greatly appreciated.

Thanks!
 

indietalk

IndieTalk Founder
Staff Member
Admin
As I understand it, if you have a talking head commenting on a piece of music playing in a film then that is fair use.
Can you explain in more detail please?
 

indietalk

IndieTalk Founder
Staff Member
Admin
If I want to review Billie Eilish's new song, it is fair use for me to play a little of it as part of my review. However, if this is part of a scene in a narrative film, as in someone watching said review as part of the story, fair use no longer apples.
 
If I want to review Billie Eilish's new song, it is fair use for me to play a little of it as part of my review. However, if this is part of a scene in a narrative film, as in someone watching said review as part of the story, fair use no longer apples.

Yes, that is what I meant...like documentaries about cinema that have clips from films with people talking about them.

In my case, I've used music from an artist who is the subject of the documentary I've made (and is deceased). Song clips range from short to several minutes, generally illustrating the songs with related imagery, but sometimes used as background.

Some major labels own some of the rights (as they bought the catalogue of some much smaller labels he recorded on), but he is not very well known at all, so it's not like anyone is losing revenue on this.
 
Last edited:

indietalk

IndieTalk Founder
Staff Member
Admin
You may have some fair use, and some not. It's murky. Attorney needed.
 

directorik

IndieTalk's Resident Guru
indiePRO
Copyright isn't always about revenue โ€“ or loss of revenue. Often it's
simply the right of the owner to control how the music is used. So
โ€œit's not like anyone is losing revenue on thisโ€ may not be the issue
you're facing.

You can't afford a lawyer so you're asking for some personal experiences.
I'm not a lawyer but I have some experience with this so I can help:

Many times songs are not authorized for use in documentaries about
the artist. Songs used as background is not โ€œfair useโ€ - even in a doc
about the artist. Your example (a song about Denver set to shots of the
city) would not fall under fair use.

It seems to me you have made a documentary that will require licensing
the music rights.
 

indietalk

IndieTalk Founder
Staff Member
Admin
Musician biopics are tough. Even if you try to license the music you will likely have to deal with the estate, at this point the estate is aware of the intended use (biopic) and may require approval of the edit/story if any licensing is to occur. And it's hard to tell a musician's story without the music. Other unauthorized biopics are easier. Non-musician.
 
I am genuinely curious (not suggesting anyone use another's song without permission etc), if you come across a song that is ...well around 100 years old and wanted to use it, is it fair use? For instance if someone wanted to use this song (or one like it) in a project lol
 
Last edited:

indietalk

IndieTalk Founder
Staff Member
Admin
That would be public domain not fair use. If the song exists in the public domain you can use it but you would likely have to record it or hire someone to, as, the recording would likely have a copyright. Unless the recording was in the public domain, but that's usually unlikely.
 
Top