Music Copyright Bows To Fair Use by Michael Donaldson

Music in films is just as important as actors, writers, directors and producers. Some would say music is even more important than many other elements. But choosing the right music is the key. Music can make you tremble in fear; it can make your heart race with excitement; it can make you cry with sorrow. Music can lead you up to the climax of a film, and bring you back down to the resolution. Music can not only send a powerful message, but it can turn a powerful message into an explosive statement.

The uses and applications of music in film sound almost too good to be true. The price tag to use certain music in film can be so high that great music might almost be unaffordable. If you are making a documentary, the price tag for music can feel exorbitant. Is there anything that can be done to receive high quality product on a low quality budget? (Isn't that the ultimate life question?) Fortunately for movies, there is a little thing called Fair Use which might be the answer to their prayers.

Let me take you all the way back to April 2008. The filmmakers of the documentary "Expelled: No Intelligence Allowed" were sued for copyright infringement by Yoko Ono and John Lennon's sons, who happen to be the copyright holders of John Lennon's works. "Expelled" is a documentary primarily dealing with the harsh treatment of anyone in the academic community who wanted to promote the concept of intelligent design as it applies to the creation of earth and man. The film also explored the position of some scientists who think that the role of religion should be reduced or eliminated. To illustrate the role of this thought in pop culture, Ben Stein (the narrator of the documentary) comments that the thought is nothing new and in fact "takes a page from John Lennon's playbook." Immediately after those words, the 15 seconds from John Lennon's song "Imagine" plays with the lyric printed out on the screen over four stock shots: "Nothing to live or die for and no religion, too." Upon first glance, it would appear that the filmmakers of "Expelled" would need to pay for their use of 15 seconds from John Lennon's composition "Imagine." However, our office issued the opinion that this use of a master recording was a fair use. Not only did we think it was a fair use, we thought it fit into the safe harbor provision.

To determine if the clip would fall into the safe harbor provision, ask yourself three questions.

(1) Do you need to use this item to make the point being discussed at that time, cinematically?

(2) Did you only use as much as needed to make the point?

(3) Would the connection between the item you are using and the point you are making be clear to the average viewer without any further explanation?

If you can honestly answer "yes" to those three questions, your use will always be a fair use.

Now back to "Imagine." The particular clip of music is the best proof of the point that Ben Stein was making, so the filmmakers needed it to make the point. They only used as much as necessary to make the point. And the point they were making would be clear to anyone viewing the film without any further outside explanation. In the thoughtful chambers of a federal court in New York, the judge's careful analysis resulted in a finding that we were right in our fair use assessment.

Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over thirty years. His book Clearance and Copyright, the third edition of which was just released, is used in over 50 film schools and has become the standard reference book for the industry.

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