Copyright in the United States incentivizes the creation of new works by providing limited monopolies to copyright holders. These monopolies last for the duration of the copyright term and allow copyright holders to control the exclusive rights to a copyrighted work granted by copyright law.

In Chapter 7: Copyright Basics, we covered the basics of copyright law and the essential licenses that apply to musical works. These licenses serve as specific avenues for copyright holders to take advantage of their exclusive rights in musical works and sound recordings. But Congress recognizes that a monopoly without exceptions can sometimes undermine copyright’s goal of encouraging and inspiring new work. Because of this flexible approach, there are some exceptions to copyright law that are important to understand.

A copyright exception allows you to use a copyrighted work without permission and without a license. When you include a quote from a copyrighted work in your research paper, you are exercising an exception to copyright called fair use. Exceptions to copyright law also allow criticism or negative reviews of copyrighted works; specific uses of copyrighted works in classrooms; and even allow the sale and purchase of used books and records. You probably encounter situations where an exception to copyright is happening every day without even noticing it.

The law also recognizes that individuals are not the only ones who need exceptions to copyright. Cultural institutions including libraries and museums have important responsibilities to foster long-term access to our many cultural heritages. To do this, libraries and archives can use exceptions to copyright that allow them to preserve, repair, or copy damaged out-of-print copyrighted works to ensure they remain accessible to students, scholars, and other library users.

In this chapter, we examine copyright exceptions that will help you manage your research-creation and teaching projects.

Fair Use

Fair use, Section 107 of the Copyright Act, is a provision that lets you use copyrighted works without permission in some situations. It is an exception unique in U.S. copyright law because it can apply to any use of a copyrighted work depending on the specific facts of the situation. Fair use asks that we analyze why we want to use a work in a particular way. If the use is reasonable based on factors outlined in the law, the use is fair. Many nonlegal experts can find fair use very confusing because there is no equation or test in the law to tell you when your use is a fair use and when it might be an infringement. This leads to many myths about fair use.

You might hear that “Fair use is a defense, not a right!” But if you read the law, the language is clear and easy to understand. Nowhere does it say that you must defend your fair use to a copyright holder in a court of law to ensure that it is fair. Novice musician-scholars often hear this phrase and are immediately concerned with being accused of copyright infringement. However, many researchers, news reporters, and teachers use fair use every day without having to defend their respective fair uses in court.

While many parts of the law are complex and can be difficult to understand, 17 U.S.C. Section 107 is quite readable:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.^[1]

You might notice right away that many activities you engage in as a musician-scholar are cited in the law: Education, research, and scholarship can all be activities where you use fair use. This is not an exhaustive list and other activities can be fair uses, too.

The lack of a formula to determine fair use has led to the development of many guidelines to help the public understand when a use can be fair. These guidelines can be well-intentioned, but sometimes they perpetuate myths about copyright and fair use. Some of the most popular myths are that any educational use is a fair use; that if you only use 10% (or 30 seconds of a sound recording!) it is always fair use; or that any change to a copyrighted work makes it a fair use.^[2]

Perhaps the most repeated myth about fair use is that all educational uses are fair uses. While there are many uses of copyrighted material in an educational context that could be a fair use, some are clearly not. For example, scanning and posting an entire theory textbook online for your students would not be a fair use. Even though education is a setting where the law says fair use can be employed, you still need to weigh the four factors in the law to determine fair use. While this use may be educational, textbooks and technique books are created specifically for teaching. Simply using these works for their intended purpose harms the market for these copyrighted works: They were created to be purchased by students and teachers for the classroom or other educational settings. When you use fair use as a rationale to share a textbook with your students, you are making a substitute for the copyrighted work in the marketplace. The fourth factor of fair use tells us that fair uses of copyrighted material should not substitute for the original in the market. This gives us some guidance on what kinds of uses are likely to be fair, and that a fair use should be adding meaning or context to the copyrighted item that extends beyond the reason it was created and made available for sale.

Another popular myth about fair use is that if your use is noncommercial, then it is a fair use. While it is true that court decisions have said that noncommercial use is favorable, that doesn’t mean it is always fair use. Handing out copies of a copyrighted musical score at choir practice without purchasing every chorus member a copy is not fair use simply because your choir is a nonprofit. The noncommercial aspect of the first factor of fair use is not likely to outweigh the harm on the market.

However, legal decisions have, over time, developed an interpretation of the first factor of fair use that can be important for creators who want to take advantage of fair use. This interpretation says that when a use is “transformative,” it is more likely to be a fair use. Judge Pierre Leval, a scholar who writes about transformative fair use, says that transformative uses are ones that utilize a copyrighted work as “raw material, transformed in the creation of new information, new aesthetics, new insights and understandings.”^[3]

One of the most noteworthy fair use cases involving music is Campbell v. Acuff-Rose.^[4] In this case, Acuff-Rose, the publisher of Roy Orbison’s song “Oh, Pretty Woman,” sued the members of hip hop group 2 Live Crew, for using the melody of Orbison’s song in their parody, “Pretty Woman.” The case went all the way to the Supreme Court. The court ruled that 2 Live Crew’s song was a parody that critiqued of Orbison’s original. The transformative nature of the critique in their original song meant that it neither replaced nor harmed the market for “Oh, Pretty Woman.”^[5]

Some artists want to use other copyrighted music in sampling the way that Judge Leval describes: as raw material transformed in the creation of new musical works.^[6] However, there is not much clear caselaw about fair use and sampling. That doesn’t mean that there haven’t been many lawsuits. In one of the very earliest lawsuits, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court wrote “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”^[7] The court did not consider fair use in this case, but because they said even the smallest sample is creative enough to require a license, many artists and record labels are hesitant to pursue fair use to sample sound recordings. Generally, record labels require artists to work with their legal teams to inventory and secure licenses for all samples.

Yet, artists like John Oswald^[8] and Greg Gillis^[9] have built their creative research on the practice of sampling without licensing. Both artists have spoken about the value of recorded sound as raw material in new works. Oswald and Gillis might even argue that the very fact that they have not faced lawsuits over their work indicates that their use is fair use. Decisions in other cases, including The 2 Live Crew case and a more recent lawsuit involving Drake,^[10] do provide some guidance. The U.S. Copyright Office also indicates that there are some instances where sampling may be a fair use, stating, “In some cases, sampling, interpolating, or creating a mashup may be considered a ‘fair use’ and not copyright infringement.”^[11]

But there are risks to consider. Vanilla Ice paid steep penalties when the court found that his sample of Queen’s “Under Pressure” used in his song “Ice Ice Baby” was too substantial and recognizable to be fair use.^[12] When making decisions about fair use and sampling, it is important to understand any potential risks and consult your own lawyer to fully understand and document your decision-making process.

Nevertheless, there are many situations outside of sampling where using a copyrighted sound recording might also be a fair use. This is particularly true in teaching, where a sound recording may be a primary source of analysis and critique by students and teachers. Checklists and guides for fair use can be particularly helpful. When making decisions about fair use in the classroom, here are several useful resources worth exploring:

• Columbia University Fair Use Checklist [print version for download]
• The Ohio State University Fair Use Checklist [online interactive]
• Carrie Russell’s Complete Copyright Guide to Copyright for K-12 Educators
• Center for Media and Social Impact Codes of Best Practices for Fair Use

Fair use checklists can help you understand how each factor can be specifically applied in your unique situation. Russell’s book is an easy-to-read guide aimed specifically at educators who need to understand fair use in the classroom. The guides from the Center for Media and Social Impact focus on specific communities of practice and present real-life examples about how filmmakers, educators, and poets employ fair use in the course of their everyday practice.

Checklists like those listed here will not calculate a fair use answer for you, but these resources can help you assess and document the fair use rationale of your project.

If you have questions or concerns about utilizing fair use, you may want to consult legal counsel. Many musician-scholars are concerned about the costs of engaging a lawyer, but the Volunteer Lawyers for the Arts are available to help. The Maryland Volunteer Lawyers for the Arts have expertise to help you understand how to responsibly bring fair use into your artistic practice.

First Sale

The first sale doctrine defined in Section 109 of the copyright law, often simply referred to as “first sale,” makes a distinction between the expression of creative ideas in a copyrighted work and a physical copy of that work. For example, we know that musical works are protected by copyright. However, as a musician, when you buy a copy of a physical score, you are not buying the copyright to that musical work. You are only buying one physical copy of that musical work.

This means that you are free to dispose of that single copy in any way you want—trading, lending, gifting, etc.—without any permissions from the copyright owner. By contrast, it also means that you cannot copy the music on the pages, perform it or display it publicly, or exercise any exclusive rights of the copyright holder without permissions. This section of the law is incredibly powerful. Without it, libraries would not be able to lend books, and used book and record stores could not exist. Usually, this is part of the law that we take for granted, especially when looking for used scores or textbooks. But the growth of digital publishing has brought first sale back into the spotlight.

In 2012, a newspaper erroneously reported that actor Bruce Willis was going to sue Apple because the terms of service prevented him from leaving his iTunes music collection to his family in his estate plan.^[13] While the lawsuit never happened, it brought to light an issue that consumers are increasingly concerned with about digital media: not owning the files we “purchase” means that we may not be acquiring the digital collections we think we are.

The Willis hit the news the same year that ReDigi, a marketplace to resell digital music, books, and games, was being sued by Capitol Records.^[14] Despite ReDigi’s claims that a single file was sold from one verified user to another without leaving copies, Capitol Records called it a “clearinghouse for copyright infringement.”^[15] The judge didn’t quite agree, but the ruling said that digital technology requires copying, and that when a file is moved from one user’s hard drive to another, it copies that content in a way that violates copyright law and isn’t covered by first sale.

This has a few implications for musician-scholars. First, it complicates the way that we use private collecting as a part of our research-creation practice. You can no longer own your digital collections the way you own DVD, CD, or vinyl collections. Copyright holders are only providing you with a license, even when you click the Buy Now button on Amazon Prime.^[16] In a recent example, anime fans and scholars were shocked when Sony announced that content Funimation users thought they had purchased permanent online access to on the Funimation platform was no longer going to be available to them.^[17] This becomes even more concerning when you realize that libraries cannot even purchase access to this kind of content, such as documentaries and films only licensed for streaming platforms. When Sony decides to remove content from a platform, it could potentially be lost forever because libraries do not have copies that can be preserved for researchers.

This is also important when you are making your own work available digitally. If you are selling sound recordings on Bandcamp or PDFs of compositions on your website, the user buying that item cannot sell, lend, or trade that file to anyone else. For individual users, this may not be important. But libraries may not be able to purchase your work for their collections. Libraries can be important tools for musician-scholars who want to explore new programming; having your work in library collections can lead to unexpected performances and ensure your work can be preserved for the future.

Exceptions for Public Performances

Section 110 of the U.S. copyright law outlines when you can perform or display works without permission from the copyright holder. In this section of the law, Congress recognizes that in some situations, a public performance or display should not need prior permission. These situations may include teaching, religious services, state fairs, playing music in record stores, and more. Here are three exceptions that most musicians should know about.

One of the most important public performance exceptions for musicians to understand is the classroom exception covered in Sections 110(1) and 110(2).^[18] The classroom exception for in-person teaching states that you can display or perform any legally obtained copy of a copyrighted work in a classroom at a nonprofit teaching institution. The nonprofit part is important: Many community music schools are not nonprofit institutions, so if you are teaching there, you may need to rely on fair use for similar kinds of teaching activities.

You might assume that this remains the same in the online classroom. However, Section 110(2), sometimes called the TEACH Act, is much more complicated. It allows for only performance of limited portions of a work. There are also a series of requirements that your employing institution must follow for instructors to take advantage of this part of the law. That doesn’t mean that you don’t have the right to fair use, though! A fair use analysis will help you make that determination. The Music Library Association created a statement about digital transmission of audio recordings that discusses why this activity can be a fair use and the reasons that an instructor might need to make an entire work available to students for study.^[19]

The second exception that you may need to know about is Section 110(3). This part of the law says that you can perform non-dramatic musical works, dramatic works of a religious nature, or display a work during the course of a religious service.^[20] This means that if you are hired to perform music as part of a religious service, neither you nor the religious organization need to acquire performance rights to the music performed during a service. However, it is common for places of worship to host musical performances that are not part of a religious service. This exception does not cover those performances. So if you are presenting a recital that happens to be at a house of worship but isn’t part of a religious services, you will want to talk with the organization to make sure the appropriate licenses are in place.

The last part of Section 110–Section 110(4)–is the exception that many musicians have never heard of at all. This section of the law allows for nonprofit performances of nondramatic works without a public performance license. There are some restrictions on this: The performance should not be primarily for an organization to directly or indirectly benefit financially; no organizers, performers, or promoters can be paid for the performance; if there is an admission price, any funds collected after productions costs must be used exclusively for educational, religious, or charitable purposes; and the copyright holder of a musical work can make an objection to the performance by following the direction outlined in the law.

Does this mean that you will never need a public performance license if you’re not being paid for a gig? Not quite. But if a nonprofit invites you to perform a recital for a concert series where you agree to perform without a fee, and any funds from ticket prices are donated to the host nonprofit organization, it would qualify under this exception. However, the exception would not apply for a show where any ticket fees were collected and split with performers and producers directly, even if it’s hosted by a nonprofit organization.

Conclusion

In concluding our exploration of copyright exceptions, it’s essential to reflect on the role these exceptions play in balancing the rights of creators with the public’s interest. These exceptions, including fair use, first sale, and specific provisions for libraries, archives, and public performances, serve as crucial mechanisms that ensure the flow of knowledge, culture, and innovation. They allow educators, students, artists, and researchers to use copyrighted works in ways that contribute to education, scholarship, and creative expression without stifling their ability to engage critically with the world around them.

Understanding and applying these exceptions requires careful consideration and, at times, legal consultation. But they are designed to empower you to work within the law while pursuing research-creation projects. Armed with knowledge and respect for both the letter and spirit of copyright law, you can confidently engage with copyrighted works in a manner that enriches your work and respects the rights of creators.

About the author

name: Kathleen DeLaurenti

institution: The Peabody Institute of The Johns Hopkins University

website: https://peabody.jhu.edu/faculty/kathleen-delaurenti

Kathleen DeLaurenti is the Director of the Arthur Friedheim Library at the Peabody Institute of The Johns Hopkins University. She holds an MLIS from the University of Washington and a BFA in vocal performance from Carnegie Mellon University.

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