Intellectual Property Rights and Music Therapy

Hmmm. Tough facts make for tricky analysis.

On the one hand, for the very reasons that the therapist is using the music, he or she ought to be required to buy a license to use it -- i.e., the music is NOT for the therapist's personal in-home use and is, in fact, the very tool used by the therapist to make a living (much like a bar owner uses music to entice customers into, and to stay in, his or her tavern). The commercial use of another's music -- for the very purpose for which the music was created (to really listen to it) -- is a good reason to deny to the therapist a free pass to use that music. In short, the therapist is free riding on the work of the music copyright owner every time the therapist performs the music to make a buck. Especially, but not exclusively, if the therapy session is with a group of patients.

On the other hand, healing via music is a good thing that the public should encourage.

I don't have an answer for you - and don't think there is one. This issue is a good one for a law student to write a 5 - 10 page paper for extra credit in a copyright class.

Title 17of the United States Code -Section 107 addresses the fair use doctrine:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In evaluating one of the above factors, the purpose of the use in a therapy setting seems to be commercial. Chief Judge Newman wrote "that a particular unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fail' when there is a ready market or means to pay for the use." See Princeton University Press v. Michigan Document Services.

The Supreme Court stated in Sony Corp. of America v. Universal City Studios Inc. that "although every commercial use of copyrighted material is presumptively and unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter."

The therapist will have the burden of proving that their use does not reduce the market for the copyright owner's work.

Disclaimer: Please note that this answer does not constitute legal advice. This answer does not create an attorney-client relationship. I am unable to give you legal advice without knowing all the facts of your case.