We're working on a TV pilot that features a karaoke contest in a bar. Toward the end, a member of the rival team is seen "singing" 10 seconds of a hip-hop song as picture fades out. His interpretation of it is awful, to the point that it's barely even the same lyrics, and the backing track we made for it is original, and doesn't really derive from the original beat.
My thinking is, because we've used so little of the work, and because its "transformative" in nature (not the original recording, poorly done performance), and is used only to make a point in the show, that this constitutes fair use. I was wondering what some experts thought. Thanks for your time.
If it helps at all, the song has no discernable melody so the only thing at issue here are the lyrics the actor is "performing". The pilot is a submission to the NY TV Festival and not directly ordered by any network, but could be exhibited at the festival should it be selected. I've reached out to the publisher regarding licensing, but suspect they'll decline outright due to the intentionally poor performance. (especially by a demonstrably nerdy guy of an demonstrably "gangster rap" track) Follow up question: Would dubbing in different "sounds-alike" lyrics still constitute possible infringement? FURTHER UPDATE: Was able to send the rights holder the clip and they actually agreed that it was satirical enough to agree to let us use it for free. Thanks for the advice everybody! Glad I actually asked for the rights!
Trademark Application Attorney
While I agree with my brother counsel that "fair use" is hard to define, I think theer is a thread of interpreatiuon that commercial use as opposed to academic use (comment and criticism, even a book that is to be sold) is a rough divider. Your use is clearly commercial, not a commentary on this karaoke or karaoke in general. If this pilot leads to a major production deal it might be said that all your profits came from using this badly sung rap. You want to take that chance? Get a clearance, please, even if you need to give them a few dollars.
Information here is general and is not a substitute for consulting with an experienced attorney on the specifics of your situation.
Patent Application Attorney
No, it does not constitute fair use, it may, no necessarily, be infringing.
As to the poor singing, it really does not matter. Neither does matter that it is a 10 seconds performance . What matter is whether this 10 seconds is a sampling of the core of the song.
Obviously you choose the song for the audience to identify more than just a person singing with the help of the karaoke, correct?, otherwise you would have had someone speaking gibberish You need to review your case with a Copyright clearance attorney.
Patent Infringement Attorney
Fair use is a very vague and subjective test. Intelligent people can easily come to different conclusions on the same facts. That said, I would tend to agree with you, given the way you presented the facts. However, I'm sure that an attorney for the other side would have a very different way of presenting the facts.
The four simplified questions you should ask are these:
Is the copy being sold?
How “artistic” is the work?
How much did you copy?
Did you impact the original author’s income?
The first question is usually the most determinative. Here, it does not appear that you are selling a copy of the work so much as selling a TV show of which a very minor component is a snippet of an interpretation of another song. So long as that is not the core element of the show, you are probably OK. But if the title of the show is: "Watch Us Sing This Song Poorly" then you might have a problem.
Do not take a chance the "fair use" argument. You need to obtain a music synchronization license from the song publisher. Better to be safe than sorry.
Fair use is so difficult to determine. There are many factors that go into that decision, and they change in emphasis from case to case.
If it is a network ordered pilot, I'd address the issue withe your E&O carrier. If its a "sizzle reel" to be used to sell the show to a network, I would still ask the E&O carrier. But the risk of actual damages here is smaller, largely because the audience is smaller. If the only audience is one or two people, for the purpose of selling the show, its still infringement, and you still face potential liability for using the composition and the recording without permission, but as a BUSINESS matter, you may be willing to take the risk.
All the lawyers will of course advise you to clear that use, because then you will have no chance of being sued for infringement. Indeed, that is my advice as well, without having the ability to see the actual footage. But as a business man, you may want to run that risk.
Whether it is or is not a fair use, it will be less costly to license the song than to litigate the issue of fair use. This is a DEFENSE, which means you argue the point AFTER you get sued. You could easily win the battle, but lose the war.
This is obviously not fair use. You are using this rap song for a commercial purpose. You should either get a license for this use or cut it out of the TV pilot. Otherwise, you risk a very expensive law suit. Ten seconds is more than sufficient to violate copyright law.
Intellectual Property Law Attorney
This is likely parody and thus fair use. However, you should contact the copyright owner with an explanation and they may well agree and simply give you permission. Most copyright owners are far more lenient when you contact them on these commercially insignificant karaoke type renditions than if they have to contact you.
So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.