copyright fair-use music
Fair use of licenced music snippets in a commercial, educational product
<p>I have a commercial product that teaches music theory using a series of short videos. In an upcoming video, I'd like to give examples of particular theory concepts using several short snippets of popular music (~10 seconds each). The snippets would play a minor overall part in the lesson.</p>

<p>I have three questions.</p>

<p>1) Would this usage (several short snippets of licenced music) be considered "fair use" in a commercial, educational product?</p>

<p>2) Instead, if I were to record myself strumming the chords of that particular song snippet (~10 seconds), would it be fair use to use <em>that</em> recording in the video?</p>

<p>3) Is there any issue simply discussing the songwriting (e.g., chord progression or melody) of a piece of licenced music in the video?</p>

<p>It's of course safest to obtain licenses for any copyrighted work you use, but I see a strong argument supporting a fair-use defense here. </p>

<p>The factors for fair use are set out in <a href="https://www.law.cornell.edu/uscode/text/17/107" rel="nofollow noreferrer">17 USC 107</a>:</p>

<ol>
<li><p><strong>The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes:</strong> Your use is educational, which cuts in your favor, but it's commercial, which cuts against you. Also supporting a fair-use defense is the fact that the samples play "a minor overall part in the lesson." Overall, I think this factor works in your favor.</p></li>
<li><p><strong>The nature of the copyrighted work:</strong> Musical recordings are highly creative works, near the heart of the purposes underlying copyright protection. This factors cuts against you.</p></li>
<li><p><strong>The amount of the portion used in relation to the copyrighted work as a whole:</strong> A 10-second snippet is a very small portion of virtually any song. This cuts strongly in your favor.</p></li>
<li><p><strong>The effect of the use upon the potential market for or value of the copyrighted work:</strong> It seems unlikely that people are going to use your product as a substitute for the original works. If you're willing to pay for the song, you probably want more than the 10 seconds in the video, and you probably don't want to have to sit through a bunch of music theory before you can hear it. This is the most important factor and it cuts pretty well in your favor.</p></li>
</ol>

<p>These factors aren't just added up; they're all balanced against each other in a complicated calculus that is, in the end, mostly just a judge making a subjective decision. But there's a lot cutting in your favor here, and I think that it would be hard to sustain a copyright-infringement action based on the facts you've described.</p>
