How to legally use music in your video What is “fair use”?

If you create your own videos, have your own channel or are active in social networks such as Instagram, Vimeo, YouTube, Facebook, TikTok and others, this article will definitely be interesting for you, regardless of whether you are a beginner in the world of video content, or already have experience in creating videos. In our article you will find useful information on how to use music legally. Our recommendations will help you create a video without infringing the rights of copyright.

So let’s start with the concept of music copyright, so what is it?

The concept of copyright is quite simple and consists of the following: if you create a work, you are its owner and have the right to copy, publicly display, reproduce, and otherwise use it. This also applies to music, meaning that if you wrote a song, you are the only one who has the right to use it, regardless of whether it is sheet music or a reproduction of it. 

So, the first conclusion that can be drawn from the above is that the use of the work, including musical compositions, without the permission of the author is prohibited. Only the author has the right to determine how his work can be used, and any unauthorized use may violate copyright.

But there is still a way out, there are ways to use the work without infringing the copyright, it is about concluding a license agreement.

A license agreement is an agreement under which one party (the licensor) grants the other party (the licensee) permission to use the object of intellectual property rights (the license) on terms determined by mutual agreement of the parties. A license agreement can be concluded by contacting the author directly, or using various platforms, music libraries that provide free licenses, for example, Creative Commons. 

However, before using any service, it is important to read the policies and terms of use to find out what additional responsibilities you may have. For example, some services may require the licensee, i.e. the party to whom the license is granted, to comply with restrictions on the purpose of use, form of use, frequency, quantity, etc.

In addition to musical libraries mentioned above, as well as the social networks themselves, provide licensed tracks that you can include in your post.

Facebook / Instagram have created a library of music and sounds that you can use. This feature allows you to add music to your content without obtaining any permission from the copyright holder.

Such provision of access to, including audiovisual works, is regulated Art. 17 of Directive (EU) 2019/790 “on copyright and related rights in the Digital Single Market”, where it is stated that if “online content-sharing service provider”, –a service provider whose main or one of the main purposes is to store and provide public access to a large number of works protected by copyright, which it organizes and distributes for profit, provides public access to copyrighted works, “online content-sharing service provider” must obtain permission from the rights holders, for example, by concluding a license agreement.

If “online content-sharing service provider” provides access to, including, audio works under the conditions set out in this Directive, limitation of liability does not apply to such “online content-sharing service provider”.

Suppose there is an online content sharing platform, such as a social network, where users can upload their videos and other creations. This platform attracts a large number of users and the main purpose of its activity is to attract the public and make them able to watch these videos.

The platform stores and provides access to a significant number of tracks for the creation of its own content, which are protected by copyright, and does so for the purpose of making a profit (for example, from advertising revenue or paid user subscriptions), it will be recognized as an “online content-sharing service provider” under with Article 17 of the Directive. In such a case, the platform is obliged to obtain permission from the authors or copyright holders to use such tracks before public access to these audio works is granted.

Thus, this example illustrates the obligation of the “online content-sharing service provider” to take appropriate measures to ensure that copyright is respected and to ensure fair compensation to authors for the use of their works on the platform.

However, in some cases you won’t even need a license, especially when it comes to considered material public domain, or when the doctrine of fair use is applied.

Note:

1. The term of copyright varies from country to country. For example, Austria, Ukraine, Belgium, Greece, Ecuador, Finland – 70 years after the death of the author. Examples of songs in the public domain on this basis are “After You Get What You Want, You Don’t Want It” (Irving Berlin);“Some of These Days” (Shelton Brooks); “King Porter Stomp” (Jelly Roll Morton) and others.
2. We are talking about the extension of the term of copyright, by means of which the initial term of copyright protection for a work can be extended for a second term. It should be emphasized that the extension of copyright is currently more of an exception, which is not characteristic of most countries. An example where such an extension of copyright exists is the United States. If the work was published before 1964, the owner had to apply for copyright renewal within 28 years of publication. Failure to renew meant loss of copyright.
3. The author of the work decided not to restrict anyone from using his work.
4. Copyright law does not protect book or movie titles, or short phrases like “Make my day better.” Copyright protection also does not extend to facts, ideas or theories. These things are free to use without permission.

Below we will consider the American doctrine of fair use, which allows the free use of copyrighted materials without obtaining the author’s permission. Since virtually all copyright disputes on the most popular social networks are governed by US law, it is important to consider the following factors in determining whether a use of a musical work meets the “fair use” doctrine:

– Purpose and nature of use.

– The nature of the work protected by copyright.

– The extent or materiality of the part used.

– The effect of use on the potential market or value of the work.

Without going into the details of each factor listed above, we will provide you with some general rules that will help you avoid copyright infringement complaints, avoid liability and keep your page accessible:

1. Comment and provide criticism in response to copyrighted material you use.
2. Limit the use of copyrighted music segments to, for example, 2-5 seconds.
3. Use a copyrighted work in a context other than that intended by the original author.
4. Remix or create a new expression of a piece of music, changing its perception.
5. Cite your name, title, website, publisher, date, and URL in the “Description” section of your video or in your podcast notes.

It is important to remember that copyright protection and fair use are critical aspects when using music and other works in your own video content. Modern violation detection mechanisms, such as Content ID scans, allow you to detect illegal use of content immediately.

Do not hope in vain that you will not be noticed or caught for copyright infringement. In order to avoid problems and liability, it is better to approach this issue seriously, observing the copyright and rules for using content with the permission of the authors.