Simply put, copyright law says that no one else can use a person’s work. Whether it’s a written work, a painting, or, in this case, music, only the creator of the work has the legal right to use it.
I’ve seen small presses using whole songs by commercial bands to make video promotions for books they’ve got coming out. The question is: Do they have a legal right to use these songs or not?
There are a lot of considerations that come into play, including “fair use,” “Public Domain” and “Creative Commons” licensing. Chances are, your publisher will cite one of these as reason that they’re allowed to use a whole song to promote your book if you work with them. But let’s take a look at those.
Fair use exists to allow copyrighted material to be used for educational purposes, to be parodied, commented upon or criticized. There are generally four criteria for determining whether or not material falls under fair use.
1. The purpose of use, including whether or not use of the copyrighted material is of a commercial nature. If you’re planning to make money on a product associated with the song, use of copyrighted material doesn’t fall under fair use. As such, 2, 3, and 4 don’t really matter.
Creative Commons License:
The Creative Commons License lets others distribute remix, tweak and build upon a copyrighted creative work, even commercially, as long as they credit the source for the original creation.
Well, there it is, right? Permission to use a song, even for commercial purposes, as long as credit is given to the source! Tah DAH! .
Not quite. There’s a catch. The material (song, in this case) must bear the Creative Commons license in order to be reused. This is a license that the creator gives. It is not a license that the user can claim.
It’s simple. If the song doesn’t display the Creative Commons license, it’s not up for grabs, not even under Creative Commons license usage.
Public Domain means simply that a creative work (written, created or recorded) no longer falls under copyright. Since we’re talking about copyrighted music, public domain does not apply, not even if the work is readily obtainable via the internet. Just because it can be found publicly, that doesn’t mean it’s up for grabs.
It is true that a song becomes public domain after a period of time – 95 years. So unless the song you’re planning to use was created before 1922 or so, you’re out of luck.
Let’s take a look at some of the biggest myths about copyright, music and videos.
1. I haven’t been caught yet, so I must not be violating any copyright.
Wrong. The fact is that the internet is a huge place. Just because you haven’t been caught yet, doesn’t mean you aren’t violating their copyright. The longer you benefit from somebody else’s copyrighted work, the stiffer the penalty might be when you are discovered. And if you’re a persistent repeat offender, you WILL get caught.
2. It’s just a fan video, so I’m not violating copyright.
Wrong. We’re not talking about tributes, here. We’re talking about promotional videos intended to promote sales for specific products: books. That puts these videos in the realm of commerce. It’s a whole different ball game when money comes into play. .
3. I don’t put up ads on my videos, so it’s automatically fair use, right?
No. It’s not. The original copyright holder can still be liable to force you to take down their material, especially if money comes into play. If you’re using a song to promote or make money off of a tangible product, like a book, you’re wide open to be sued by whoever holds the copyright. If you’re a writer considering publication with someone who does this, run. It’s illegal.
4. I didn’t see a copyright notice, so there must not be one.
Nope. Think again. The very fact that a thing is created gives the creator an automatic copyright. A copyright notice may enforce a copyright, but even without one, a copyright still exists. And if it’s music that’s been recorded and distributed commercially, you can bet your sweet aunt Fanny there’s a copyright on it.
5. But I found it on the internet, so it must be public domain.
Nope. Just because something’s posted on the internet, that doesn’t automatically make it public domain. You don’t have permission to use it just because you found it. It’s still copyrighted material, and you must pay for the license to use it. Otherwise, it’s theft.
6. I wrote a disclaimer in my description saying that I had copyright infringement is not intended. So I’m covered.
No you’re not. Just by saying you don’t “intend” to break the law doesn’t mean you aren’t breaking the law. Taking and using something you have no legal right to use does not give you permission to use it, no matter how you explain it. You can still be punished to the fullest extent of the law.
It’s pretty simple. Songs are copyrighted, especially for commercial use. That means that they cannot be used to promote a commercial product. Like a book.
So, if you see a publisher using whole songs to make videos for the purpose of making money from a product, like a book, THEY’RE STEALING. You would do well to avoid such a publisher at all costs. Chances are that if they’re stealing music, that’s probably not the only thing they’re doing wrong. You don’t want yourself and your work to get caught up in a nasty copyright lawsuit.