That’s Not Fair

While at SXSW in Austin, Texas last week, I heard something from a panel discussing music licensing that was quite disturbing. A panelist told a roomful of independent artists something like “before you use part of another song or recording as fair use, you should consult an attorney.” The disturbing part was not the recommendation that an attorney be consulted. What was alarming is that he was implying the artists can start with the idea that their use falls under “fair use”, then simply verify that it does. Shouldn’t that panelist have instead implied that you should begin with the idea that you will need permission to use a part of a protected copyright and consult an attorney if you believe that use could fall under the fair use doctrine? It seems we’ve thrown around the fair use idea so much, with misdirected understanding of what it is intended for, that it has become a starting place for using songs over the idea of getting permission from the rights owners.

That same week, our office heard from a lady who is self-publishing a fiction book, saying that a book publishing company had told her that she could use up to 4 lines of a song in her book under “fair use”. Churches and other non-profit organizations frequently ask about making copies of music with the belief that their specific use of music is allowed under fair use. And I get asked all the time how much of a song can be used, that is, how many notes or measures or words, without needing to get permission or a license. These questions are all based on erroneous interpretations of the proper intent of the “fair use” doctrine.

Let’s set things straight. “Fair Use” was not mentioned in the 1909 Copyright Act. Until 1978, fair use was defined and applied by the judicial system as specific exceptions to the exclusive rights granted to the owners of copyrights. Congress realized the need to define this in the law, so it was included in the U.S. Copyright Act of 1976. However, the language of the current Fair Use statute is said to be illustrative rather than absolute, with the intent to restate, but not replace, the prior rulings determined by judges. Today’s courts regularly consider other factors as well.

The exact language in the Copyright Act (section 107) states fair use is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”. That’s it. So it’s a little difficult to justify those misdirected notions I described earlier as being allowed under this stated purpose.

The Act then lists four factors to be considered, under the umbrella of the above stated purpose, when determining whether a use is “fair”:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair Use is not intended as a substitute for the purchase of music, or to allow the copying of performances, workbooks, tests, or other copyrighted material in normal settings. It is not intended to allow a small but recognizable portion of music to be borrowed and included in a new work. Generally speaking, it is not intended as a method to circumvent the copyright law in order to use a copyrighted work for a standard use.

Fair Use is intended to be used as a “right” under certain, limited situations, and not as a “defense” against practical infringement claims.

Through recent decades, there have been many court cases involving a wide variety of confusing and unclear exceptions of Fair Use. Interestingly, most of these cases were infringement cases, and Fair Use was introduced into the case as an affirmative defense, many times with successful judgments allowing the use as “fair”. Personally, I believe the courts got some of those decisions wrong. But I realize anyone can argue pretty much anything in the court of law, and when it comes to complex matters like determining Fair Use, you just never know which side the final decision will support.

Without arguing over the fine points of precedent setting cases and decisions, my hope is that we can agree to look at Fair Use as a limited right in certain situations, and not promote fair use as a method to cheat the system or defend a stupid act. Let’s promote the idea of respecting and using copyrights by starting with seeking permission from the rightful owners. If the use of an existing work really is for the purposes of criticism, comment, news reporting, teaching, scholarship, or research (which should obviously be known at the outset of such a use, and not brought up only when a defense is needed), then fair use is a fair option.

Otherwise….it’s just not fair.

John Barker
ClearBox Rights, LLC

“We want the facts to fit the preconceptions. When they don’t, it is easier to ignore the facts than to change the preconceptions.” – Mary Jessamyn West, U.S. Novelist

© 2013 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

Celebrating Great Songwriters

I read a statement about songwriters a few weeks ago and found myself automatically agreeing with it. Then I thought about it a little more, and realized it was wrong. The statement was something like, “Artists need songwriters like songwriters need artists.” Yeah, that sounds right. Day and night, hot and cold, yin and yang, right? You can’t have one without the other. But….wait…have we been swayed into undervaluing the significant creation a songwriter creates? I love recording artists. But I’ve come to realize, a great artist must have a song, but a great song does not necessarily need an artist.

If great songs are legitimately dependent on artists, how do we explain some of the famous songs popularized before the 1900’s, and before such things as recordings? Songs like “Red River Valley” and “The Streets of Laredo” were created in the later 1800’s and passed around the western frontier. “I’ve Been Working On the Railroad” was first published in a book in 1894, but not recorded until 1927 by the Sandhill Sixteens. Who? “Dixie” was written by a northerner in the 1850’s for blackface minstrel shows in New York, but was popularized in the south during the Civil War. It was not recorded by an “artist” for another 50 plus years. And does anyone know who the artist was behind “America the Beautiful”?

In another corner of history, some of the most popular gospel songs of today became known without artists, through what were called “annual convention songbooks”, which were very prominent in the 1930’s and 1940’s. Songwriters would write songs to be included in that year’s convention book and groups of people around the country would meet to sing through all of the songs in these books. The publishers peddled the books, and the most popular songs would spread throughout the country. Some of today’s gospel standards like “I’ll Fly Away”, “Heavenly Parade”, “Give The World A Smile”, and “Turn Your Radio On”, became classics through these convention books…. without recording artists.

So many of us in the music industry tend to let our attention be easily diverted to the fresh sound of the day, the new artist, the cool recording technique, the marketing focus, the hype, the sales, and how many views. But, under almost every one of these musical moments that we get excited about, there is a great song. Dig a little deeper, and you may also find…a great songwriter.

The Songwriters Hall of Fame recently announced its 2013 inductees, who are Tony Hatch, Mick Jones & Lou Gramm, Holly Knight, J.D. Souther, and Steven Tyler & Joe Perry. These writers, according to a Billboard article, will join previous recipients like Willie Nelson, Paul Simon, Sam Cooke and John Lennon. Hall of Fame chairman Jimmy Webb said in a release, “Each of our 2013 inductees has been responsible for captivating the world with their creativity for decades, serving up a rich variety of songs for our global soundtrack.” As we look back at the history of the great songwriters and their songs, we could really say they contributed to our “historical soundtrack”; that of the American culture, or more so, the soundtrack of global society. These songwriters are the authentic artists of our time.

While there are millions of songs, there is a much lesser number of great songs, and even less of a number of great songwriters. These are the true creators. While I have a lot of respect for artists, unless they are also songwriters, an artist’s primary role is the interpretation of something that already exists. Songwriters create that “something” out of nothing. Songs can exist without artists, but artists cannot exist without songs.

We can’t always follow a great song back to find a great songwriter, but we can always follow a great songwriter, and find great songs. I believe these noble creators fit into the definition that Malcolm Gladwell explains in his book, “Outliers”, where he suggests that the key to high level success in any specific field may take 10,000 hours of practice, work and study. While I’m sure there are exceptions to this idea, when we identify truly great songwriters, most of them have invested that amount of time in work, sweat, study, rejections, and developing their craft. Those are the ones who should be saluted, and studied, and respected.

While artists can be said to be “born with” a singing talent, I would argue that songwriters are not born to be creators. Ever thought about how easily we can be impressed with a 13 year old who has a wonderful singing voice, but hardly ever truly impressed with a song written by a 13 year old? They haven’t lived, they haven’t experienced life, they haven’t put in their 10,000 hours. They haven’t yet matured into skilled creators.

Let’s remind ourselves, especially those of us in this business of music, that the old cliché is true. It really does begin with a song…or further, it begins with a songwriter. And the great ones should be recognized for the contributions they have made. The music industry literally would not exist were it not for them. Perhaps in some way we can communicate to them our words of affirmation for their words (and music) which add so much to the fabric of our global society’s soundtrack.

Have you hugged a songwriter today?

John Barker

ClearBox Rights, LLC

“One’s lifework, I have learned, grows with the working and the living. Do it as if your life depended on it, and first thing you know, you’ll have made a life out of it. A good life, too.” – Theresa Helburn

© 2013 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.