Using Snippets of Music in Your Film

I had a question from a reader recently about whether it is permissible for a filmmaker to use a “small segment” of commercially released music without a license.

My first reaction to a question like this is to make a few quick assumptions about the type of use this filmmaker has in mind and simply say, “no,” but actually it depends upon the film and the music.

The Concept of “Fair Use”

United States Copyright law (in 17 U.S.C. § 107) contains a provision for “fair use of a copyrighted work” for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. This provision, among other things, allows journalists and critics to quote passages of a work in their reportage on that work.

If your film is a documentary or news piece that comments on music (whether your comment is positive or negative), you may be entitled to use segments of the music to illustrate your point. If your film is a fiction narrative and the characters happen to be discussing a particular piece of music, whether that can be considered fair use is a bit more of a gray area. I’d need to know more specifics before I could analyze the situation and advise.

Although there is no fixed limit on the amount a commentary can quote, quoting a large part of the work is generally not considered “fair use.” When courts are deciding whether a particular use is infringement or fair use, they consider a number of factors, not just the nature of the use and the amount used.

For a full discussion of fair use and the factors used to decide it, refer to Volume 2, Rights, of the What Every Filmmaker Need to Know About the Law DVD series (which is available at a discount to readers of this blawg!).

Licensing Music

Another provision of Copyright law (17 U.S.C. § 115) sets compulsory license rates for certain uses of music (such as radio, juke boxes, elevators, etc.). Unfortunately for filmmakers, use in motion pictures is not one of them.

To use music in a motion picture, you must negotiate the fee for that particular use with the copyright owner. From my own experience, I can tell you that fees for certain popular music can be quite expensive.

For one low-budget film I worked on several years ago, the producer wanted to use a well-known rendition of a signature song by a particular well-known performer. (In the film, a character was singing along with the radio.) The fee was $150,000 to use 30 seconds of the song! My point here is that using a small amount doesn’t always mean paying a small fee.

As to music in film, the worst thing you can do is incorporate popular music into your film (i.e. have a character sing or hum in context of the narrative) without licensing it first. You may find yourself leaving that scene on the cutting room floor if you find later you can’t afford the music or, worse, that the owner won’t grant a license.

Some owners of music copyrights are extremely particular about whom they will license to, and some absolutely will not license their music to any filmmaker.

Using Old Music

If you want to use music in the public domain (generally, written before 1923), you don’t need anyone’s permission.

However, just because the music itself is in the public domain doesn’t mean a particular performance is in the public domain (and most aren’t). For example, music by Mozart or Beethoven is freely available to anyone, but a particular orchestra’s recording of that music would require a license.

So, if you want to use old music, your least expensive option is probably to create your own recording using musicians you’ve hired.

© Keith E. Cooper. All rights reserved. You may freely link to this post, but please do not copy (in whole or in part) without permission of the copyright owner.


3 Responses to “Using Snippets of Music in Your Film”

  1. LegallyActive says:

    I need to learn more about this (fair use). Attending copyright seminar soon, looking forward to it.

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