copyright licensing music
Is there a licensing recourse to recycling a riff?
<p>I don't mean covering a song and making a few changes to the arrangement; there are mechanical licenses for that. I don't mean sampling, because this involves recording, and I'm thinking of playing the notes on one's own instrument.</p>
<p>I mean taking just a riff and doing something completely different than what the original artist did; if it were a cover, it would almost be unrecognizable. I mean the equivalent of doing what Chopin did when he took <a href="https://www.youtube.com/watch?v=nG_w8HakbiE" rel="nofollow noreferrer" title="Op 79 Movement 3">this Beethoven piece</a> and made it into <a href="https://www.youtube.com/watch?v=6hc5FKmr3FA" rel="nofollow noreferrer" title="Op 25 No 9">this beauty</a>  (and these will take fewer than four minutes if you listen to them one after another, so please do). What legal recourse do I have if I want to do that?</p>

<p>Musical compositions can be, and if recent almost always are, protected by copyright. This is separate from the copyright on a recording of a performance of the work.</p>
<p>If you reuse a musical passage, the new work may be a <em>derivative work</em>, that is a work based on an earlier work. Or an extended musical quotation could be considered to be copyright infringement.</p>
<p>If this is in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a> the use of a section from a previous work <strong>might</strong> be considered to be a <em>fair use</em> (<a href="/questions/tagged/fair-use" class="post-tag" title="show questions tagged &#39;fair-use&#39;" rel="tag">fair-use</a>). This is a specifically US concept in copyright law, although several other countries have a concept of <em>fair dealing</em> which is somewhat similar, although narrower.</p>
<p>Whether a use is a fair use is an inherently fact-based determination. There is no clear and simple bright line for what is and is not a fair use. US law (<a href="https://www.copyright.gov/title17/92chap1.html#107" rel="nofollow noreferrer">17 USC 197</a>) specifies four factors which are to be weighed by a court in considering the matter:</p>
<ol>
<li><p><strong>The purpose and character of the use</strong>. If your use is commercial that weighs against fair use, but does not at all preclude it. This factor also includes whether the use is <em>transformative</em> or not. A transformative use is one that takes the part used for a very different sort of purpose than the original. Parodies are normally transformative, for example. A quote for purposes of commentary and analysis, or criticism is normally transformative. Transformative uses are more likely to be considered fair uses.</p>
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<li><p><strong>The nature of the copyrighted work</strong>. Creative works such as fiction and <em>music</em> are more strongly protected than works such as textbooks and news stories. This probably weighs against fair use in the case described.</p>
</li>
<li><p><strong>The amount and substantiality of the portion used in relation to the copyrighted work as a whole</strong>. If only a short section of a longer work is used, that weighs in favor of fair use. However very short quotes can still fail, to be held to be fair uses. In <a href="https://en.wikipedia.org/wiki/Harper_%26_Row_v._Nation_Enterprises" rel="nofollow noreferrer"><em>Harper vs Nation</em></a> a quote of about 300 words from a  500 page book was held not to be fair use because it was &quot;the heart of the book&quot;.</p>
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<li><p><strong>The effect of the use upon the potential market for or value of the copyrighted work.</strong> A use that significantly harms the market value of the original, or serves as a replacement for it, weigh strongly against fair use. This was a major factor in <em>Harper vs Nation</em>.</p>
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</ol>
<p>Each case of claimed fair use is evaluated by looking at all four factors, and the specific facts of the case.</p>
<p>From the description in the question, such a use might well be held to be fair use. Musical quotations often are. But there is no way to be sure unless a court evaluates the specific case. A lawyer specifically experienced in not only copyright law, but copyrights on music, might be able to give more specific advice.</p>
<p>Or you could, of course, seek permission from the copyright holder, quite likely the original composer or artist. If you get permission, there is no further issue. There might be a charge, but when the use is minor, and has no commercial effect, the charge might be small or even zero provided that the source is acknowledged.</p>
