Can I Freely Use Copyrighted Music Under "Fair Use"?

I often hear this question:

Can I use your music for free under “fair use” if I only use it for educational or non-profit purposes?

The best answer is: it depends.

In this post, I will discuss some of the typical cases where “fair use” may apply and dispel some common myths that can land you in hot legal water for using copyrighted music without permission.

Keep reading.

Hi, I’m Mik, a long time music creator, and here I will explain when and under what circumstances you can probably (!) use copyrighted music under “fair use” provision of the copyright law.

Legal disclaimer: I’m not a licensed attorney. This post reflects my industry experience and research and cannot be considered legal advice. If you wish to use copyrighted music without permission assuming it qualifies as “fair use”, do it at your own risk.

What is “fair use” provision?

As explained by the U.S. Copyright Office, fair use is legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

What may qualify as “fair use for music” under copyright law?

Section 107 of the Copyright Act identifies certain types of example uses and activities that may (!) qualify as fair use. Specifically:

Common examples of fair use for music

1. Criticism / review
2. Comment
3. News reporting
4. Educational (teaching, scholarship, and research)

Important point:

This section of the copyright act only provides the legal framework to help the courts determine whether any of the above cases can be applied in your specific situation.

Fair use does not automatically remove copyright protection from music. The copyright owner still can go after you for infringement and it will be your responsibility to prove in court that your use case qualifies as fair use.

When deciding in each individual case, the courts will also consider the following:

1. Whether there is a commercial component to your work.
2. The nature of copyright content (it’s much easier to qualify for a technical article than for a song or a movie).
3. How much of copyrighted music is being used (are you using a very short snippet vs entire song).
4. How your work affects the copyright owner.

As you can see, you can’t simply claim that you can use any music, as long as you use it for, say, news reporting. There are plenty of other factors at play.

What does that mean for you practically?

By default, you must assume that any copyrighted music is protected by law and you may NOT use it.

You have to be extra careful before using any copyrighted content. Remember, only the court of law can definitively decide whether your use case falls under “fair use” provision.

Download unlimited music and sound effects for videos

Inforgaphic: 4 examples of fair use when using copyrighted music

“Fair use” myths and common misconceptions

Myth 1: I can use any music if I use it for non-profit or educational purposes

The provision only identifies certain use cases that MAY qualify as “fair use”, while tasking the courts to make final decisions on case by case basis.

It will be your (and your lawyer) responsibility to prove to the judge that “fair use” doctrine can be applied in your case.

Here’s a real-life example taken from our YouTube channel comments:

“you can use this for free for, inter alia, private and educational purposes, just saying guys these are general copyright exceptions. I’m making a podcast for uni which means I can just use it as long as I refer to the owner. This is the fair use doctrine applicable in the US. In the EU, its even easier”.

The issue with this statement is that fair use is always case by case and does not apply universally.

Simply using copyrighted content for non-profit or educational purposes does not automatically make it fair use.

For example, if you’re making a podcast discussing how to make best music intros and want to use some of our intro sounds as examples, that may qualify as fair use.

However, if you’re making a podcast for a university and use our music as intro (that adds value to your podcast) that is hardly fair use and requires the license.

Assuming (wrongly) that you are covered by the fair use doctrine, will make your university liable for copyright infringement.

Myth 2: I can use 30 (5, 10) sec of copyrighted music

Once again, it’s not about how long is the music clip but how you use it.

For example, if you’re making a video about history of, say, pop music and want to use short music clips to support your story, this may (possibly) qualify.

However, you can’t just cut a 5 sec clip from a popular song and use it in a Facebook commercial, that’s definitely not “fair use”, even though you’re only using a very short clip.

Keep in mind that most people ask this when they want to avoid copyright claims on YouTube. YouTube’s matching algorithm is quite smart and can detect similarities even with extremely short snippets and you will get the claim.

It’s not likely that simply providing “fair use” as dispute reason will help to remove such copyright claims.

Takeaway

When using copyrighted music, the “fair use” provision may apply under certain circumstances but there is no universal rule that would give you immunity from copyright law.

By default all creative works (that aren’t in public domain) are protected by copyright. You can’t generally assume you are protected by fair use if you simply using copyrighted music for educational or non-profit purposes.

Fair use is always decided on case-by-case basis and can only be definitively granted by the court after considering a number of factors, including how you use the music, are you using it for any commercial gain (yes, monetizing your YouTube channel or promoting your services is definitely commercial), and how this affects the copyright owner.

Not sure if you qualify for “fair use for music” exemption?

If you are not sure whether you can rely on fair use in your particular case, always make sure to get the license (or at least ask for permission) to use any music.

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