Royalty Free Music > Public Domain Music > The Considerations of Fair Use
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Fair use is meant for teaching, research and other related fields, but using a work for educational purposes does not necessarily make it eligible for protection under the Fair Use Act. Simply put, the Fair Use Act breaks down into four different parts: purpose; nature; amount and effect. All these factors must be examined, and even these factors are subject to human interpretation by courts. Like determining the content of and the nature of both the public domain music catalogue and copyright law, the Fair Use Act is incredibly complicated and meant to be somewhat flexible to accommodate changing technology and creation, both in constant flux.
Congress determined that non-profit and educational uses were to be honored by the Fair Use Act rather than commercial. Copies of music pieces, recordings and other creative works used in education and research that do not fall within the category of public domain music or the general public domain can only be protected under this Act if they are not made or sold at a profit. To add even more intricacy to the system, when determining fair use, courts also prefer uses that are interpretations of the original work rather than just a reproduction. Individuals are more likely to be granted the opportunity to use works if they are used as part of something new, such as quotations included in a paper or musical excerpts added as background music to multi-media projects in schools. Still, multiple copies of works are usually permitted if they are strictly for teaching purposes in a classroom setting.
This second determining factor for fair use looks more specifically at the actual qualities of the original musical or creative work instead of the unique qualities of the interpretation derived from it. There are many qualities of the original work that inform fair use. As an example, unpublished works such as letters and hand-written sketches of music compositions that constitute historical documents can cause some differing viewpoints within the courts, although many typically have decided that the owners of copyright should be able to define what they consider to be "first publication," even if the first was not originally published. However, many believe that out-of-print works, particularly those that were originally commercial and intended specifically for the educational market (such as textbooks and even textbooks with copyrighted pieces of music in them) should not be eligible for fair use. Audiovisual works in general get less fair use than printed works, as they typically contain a variety of components, including often background music and sometimes even classical music that falls within the realm of the public domain.
Amount is measured in two ways - by quality and quantity. Legally, there are no definitive measures of quantity for creative works. It must be determined in relation to the length of the original work's content and the minimum amount an educational professional or researcher would need in order to best reach the defined objective of his particular project. Visual works such as pictures suffer the most controversy because the full "amount" is typically needed. Still, the advent of technologies such as jpeg files that offer thumbnail versions of photographs has decreased both the amount or quantity and quality allowable for fair use. Similarly, motion pictures are problematic because even just selecting a small portion of the entire film might involve the most significant artistic and creative element of the work. Courts must draw a line between borrowing and reproducing what might be considered the crux of a work (such as a main musical theme in the case of music) and borrowing an acceptable, small portion of the work that is still representative enough of the piece.
Effect on the creative market is the most complex of the factors for determining fair use, and some court officials often consider it to also be the most important. Effect essentially indicates that the person using the work of music, film or any other artistic piece bought the original, whether by choice or simply to satisfy the legal aspects of possessing the work. If a person uses a freely obtained version of a work that should have been purchased originally, this typically will not fall within the realm of fair use. Effect and purpose are tied intimately. If the purpose is for research or teaching, then the market effect might not be easily provable. If the purpose is determined to be commercial, then officials can surmise that the intentions of the person using the work are neither non-profit nor educational. Those individuals making brief and occasional quotes of lyrics or published works within research materials or presentations or photocopies of portions of a work for study can more readily fall within the limits of the Fair Use Act than reproductions of video tapes or software that are typically sold en-masse specifically to gain a profit.
These four considerations of fair use are vital in determining the legal viability of certain projects and are used to uphold the particulars of music copyright law and general copyright law.