Nick's Notes - "Fair Use" and the Lyrical Gallery

Bob Dylan once sang the line "You don't need a weatherman to know which way the wind blows." While this may be true, you do need to understand "fair use" to know which way the legal wind blows, if you are to use Bob's words. It is my attempt to shed some light on this subject, and hopefully clarify it enough to keep us all out of the courtroom.

The area of focus in this article is on the use of copyrighted lyrics under web-based gallery images. Browsing through Renderosity's galleries, you're bound to run across images sporting famous quotes or song lyrics within the image, or just below the image. It's the added touch that may be the artist's attempt to connect with the viewer, telling the story of the image, enhancing it, and sharing it's meaning. It very well could be that a particular lyric became the artist's muse for that piece: a starting point to the creation of that image. Words carry weight. Combined with music, they are capable of painting pictures in the mind, and can inspire great works.

Now, let's move on to the legalities of this. Introduced in section 107 of US copyright law we have the doctrine of "fair use," which resulted from numerous court proceedings on the matter. Outlined in section 107, are the purposes by which reproduction of copyrighted works could be held as fair, and also a list of four factors used by courts in determining if the use is indeed so. For the purposes that works may be reproduced, we have: criticism, comment, news reporting, teaching, scholarship, and research. As for the use in the galleries on Renderosity, this would most often fall under "comment."

Now, how about those four factors the courts use to decide whether the use is fair? Well, the first of these deals with the purpose of the reproduction of the copyrighted work. Was the work reproduced commercially for profit, or was it used purely for educational reasons? Are you making money from your gallery on Renderosity? Maybe it is serving you as a portfolio. This may, in fact, be considered as commercial. The second is the nature of the reproduction, which, as stated previously, is merely in comment under gallery artwork.

But wait, there's more! The third factor examines the amount of the work that was used. As taken from the clause on Fair Use in US Copyright Law : "There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission." Darn! Just when you thought all you had to do was cite the author to be safe.

So, how much is too much? You may start by asking yourself just what part of the song really conveys your intentions. Most often, it might come down to one single line in a song. Sometimes one line says it all. Tempting as it may be to showcase the entire tune along with the image - don't do it! It's just not worth it. Jenifer Carey, Renderosity's copyright agent, states: "Bottom line, is that a copyright holder has the right to take legal action anytime they believe their copyright is being infringed upon. A judge (or jury) may agree with the copyright holder, or may agree [with] the accused violator. Whether it's the entire song or a small portion, you can be taken to court for it; however, Renderosity will allow a very small portion to help get your feelings and/or thoughts across to your image viewers. For example: Renderosity allows for a maximum of two paragraphs (2 verses; or a verse and a chorus; or a bridge & chorus; or a verse and a bridge), and we expect the copyright holders (usually the recording artist or performers) to be acknowledged."

To illustrate what is meant by a small portion, the following is an example using one of my own songs,

The entire song is three verses, a chorus, and a bridge. While this is only two verses and a chorus, this would be considered too much to use. You can get the general feel of the song from using just the first verse alone.

Factor four, oh no, not more! Yes, now we get to the effects on the market for the copyrighted work. You are, in fact, using the author's work in a way that was not originally intended. Maybe it's a bit far-fetched, but what if a rather controversial image is posted along with a bit of lyrics, and together the two become synonymous? That is to say that they are automatically associated with each other, and suddenly appear everywhere on the web. Could it damage the author's reputation? Could it affect the author commercially? You never know, it could happen.

The plain truth of the matter is that you really cannot be too sure, and anything is possible. Will the author see your use as compliment, or infringement? How will the court see it? In any case, you should always be aware of what you are using, and the possible reactions to its use. Understand that it is always best to first seek permission, if you are able to do so. It may be difficult to get a recording artist's permission for such a use, but it is the only real protection from infringement. Remember that just as you poured your heart into your image, that lyric underneath was poured from someone else's. Think about it.

 

 

 

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