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I did not quite understand if using copyrighted music in a video falls under the umbrella of the so called "Fair use".

Of course, here, I am assuming that the video is not used for commercial purposes, and it is solely produced for artistic/hobbyist purposes.

I am aware of the fact that royalty free music is available online. However, there are some pieces of music, mostly from movies, which are fabulous and it is a pity to not be able to use them.

I am therefore wondering as to what, at least in the US, is permissible and what is not for non-commercial purposes.

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This is best answered by a lawyer with music industry experience. The music industry is notoriously litigious. Just because your use falls within fair use doesn't mean you won't get hit with an expensive-to-defend lawsuit. –  ObscureRobot Jul 25 '13 at 6:46
    
Related: avp.stackexchange.com/a/5028/2569 –  JoshP Jul 25 '13 at 13:02

3 Answers 3

up vote 3 down vote accepted

Disclaimer: not a lawyer, but based on the experience from usage (and making) of such tracks -

All music is "copyrighted" by default unless the creator explicitly has in writing abandon those rights. The author can also write it's OK to use his music for "anything". Copyright only means that the author has the right to determine the usage of his track. If the track is used commercially or not doesn't really matter, but commercial tracks are often restricted by default by an organization that represent the artist.

"Fair use" only applies to USA and UK. Though other countries has similar variants and various restrictions/liberties in relation to usage.

For the USA version of it: Fair use means you can use any copyrighted material with another purpose than public performing or sharing. More specifically you use an excerpt of the track to criticize it, review it, as an example in relation to education and so forth.

You can not just use it, or a part of it as a background piece or in some way which does not have a purpose as mentioned above (unless you have permission through for example royalty agreements with the organization or the artist).

Lets say you are a music journalist in a radio or TV station and doing a review of a track. Here you may use a fair part of the music, a part that is sufficient for the task so you can make your point but not so large you have in practice performed the "whole" track publicly.

If you work as a teacher in a lets say a music school and want to show the student how to make a certain effect, bridge, sound or whatever, you can use a part of the music sufficient to demonstrate what you try to teach, but you can not play the whole track or the irrelevant parts of the track for the students (this last would be considered public performance).

If you post a video on YouTube showing a screen recording of a game and use a few seconds of a track as background music - this is not fair use.

If you make a movie trailer and use a part of a cool track you like - this is not fair use (however, there are exceptions in some countries to this for radio/TV stations that makes in-house trailers (commercials for their own programs/shows), I am not sure about USA on this).

Bottom line is - Use common sense and not the heart and love for the track you want to use! :-)

If you want to use a track outside the fair use you can always become a member of the organization which manage the copyright and pay royalties for the use if it is public performance related. If you want to use it for non-generic performance (movie, commercial, youtube video..) you will need a written permission to use the track for that purpose (and it comes, most likely, with a price tag).

Worth to mention: there are commercial music made especially for usage in films, commercials etc. where you don't have to pay royalties and where you have automatically all permissions you need to use it in that way. There are plenty (too many to list here) of company sites where you can buy this from. For instance SmartSound, iStockphoto Music ++.

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Thanks for the comment. In fact, royalty-free music is what I've been using... –  Bob Aug 1 '13 at 21:17

I am not a lawyer, but as far as I know, the commercial vs non-commercial distinction doesn't matter in terms of copyright restrictions unless the music is released under a license that allows non-commercial use. Fair use generally only applies to using a (small) portion of the song. For example, if you had a character that is supposed to hear the song on the radio, you could play a few measures of it before starting a conversation, but you couldn't just play the whole song.

There can be some exceptions to this such as parody (of the song itself), but that often involves having to record your own performance of the parody version of the song. Your best bet is still to see a lawyer to see if your use falls under fair use though as there are most likely other exceptions that I don't know about.

There are multiple services that will help you work out the licensing necessary for your video and it often isn't actually that expensive to do for smaller non-commercial projects, depending on the size of the expected audience. If you search for "music for video licensing" you should get a quick set of results for some current organizations that handle it.

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IANAL - but my general rule is, if someone other than myself is going to see/hear it - I have clear rights to use it. I don't use external assets unless I know they are CC with the correct attributes, public domain, or I purchased them.

The original movie producers paid to have that music in there, and the thought is that another movie (even non-commercial) using that music "weakens" their brand. The exception to this is if the new movie is a parody of the original.

Again, I'm not a lawyer... but it seems to me it would be better to be legit and fair, even if it require a bit more searching to find that "perfect" song.

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