It’s easy to download a track and slip it into your work, but utilizing music without the copyright owner’s permission is, in fact, theft. So when it comes to using music, whether for a short news clip or a feature documentary, you’ll want to clear the rights of any materials you plan to use.
“You all have a legal obligation whether you know it or not,” says Kenneth D. Crews, the director of the Columbia Copyright Advisory Office, and he’s right. The moment you create work, you own the copyright. When you use someone else’s creation without permission, you violate their copyright.
The laws regarding intellectual property and copyright are complex, and nobody expects you to understand every nuance. That said, if you ever intend to sell or even publish your work online, there are a few things you need to know to avoid being sued.
Buying the rights to music can be time-consuming and expensive, and you’ll find that the copyright and licensing of music will vary from one project to the next. If you’re on deadline, have limited funds or no budget at all (like many journalists), here are a few tips to keep in mind:
(Please note that this is meant as general guidance and not legal advice. Every project will be different and unique exceptions will always apply.)
- Keeping records – Always keep track of all the external material you are using. In other words: anything that you didn’t create. Keep track of where you’re using it and where you’re getting it from. This may not matter if it is a class project, but if you intend to publish your work you should always clear the rights. (Even if you just upload to YouTube, your video can get flagged by content ID tools.)
- Determine the copyright – It’s a good idea to determine the copyright status of all of the music you want to use before you include it in your final product. Be aware that more than one person or company may hold the copyright.
- Get permission – Once you know who owns the copyright of the music you want to use, find out what you need to do to use it. Ask for permission from the copyright holder. If you do get permission, always get it in writing. (Here you can find examples of permission letters.)
- Creative Commons licenses – There are many assets that you can find and use for free, or cheaply. Materials licensed under Creative Commons or materials in the Public Domain are your best bet. It may take some digging to find exactly what you want, but when you’re a broke student, nothing beats free! Creative Commons is a fairly new copyright system that makes it easy to legally use “some rights reserved” music as well as film, images, and other materials. Artists who create music and allow it to be used by others can license their work under Creative Commons and assign the permissions they want to their own material. Anyone can use this system. It makes determining the copyright and conditions of usage easy for people seeking free music. (Watch this Creative Commons video to get a better idea of how it works.)
- The public domain – If the music you want is old enough, its copyright may have expired, which places the material in the public domain. Materials in the public domain are available to the public for free use. This applies to materials with expired rights, with forfeited rights, or where copyright is inapplicable, such as works of the U.S. government. (Check this link for some music in the public domain you can use.)
- Fair use – You may have heard the term ‘fair use.’ This is a misleading concept because the laws around fair use don’t give exact parameters about what constitutes fair use, and it really works on a case-by-case basis. That said, fair use can make exceptions on the use of copyrighted material. When determining if something is fair use, you have to take into consideration the purpose of your project, the original nature of the copyrighted work, the amount of time the music plays in your project in relation to the length of the original track and the possible effect of using that material in the market. (The Center for Internet and Society has great resources for documentary filmmakers to help determine what is and isn’t fair use.)
- Background music – Often, that music playing in the background of your footage will be copyrighted material and you need take this into consideration. It matters less in a short news clip but will be important in short and long form documentary works. Sometimes it’s inevitable to avoid these moments in your footage but try to use this audio as little as possible.The use of this material is likely to fall under fair use, but it is subjective. The context of your project, the amount of time you use the material and the purpose of the original material will determine what is fair use.
- Ask for a favor – If you are working on a feature documentary and have the time to create an original soundtrack, there are a lot of composers who want to build their portfolios. For example, there is a film-scoring department at NYU where students collaborate with students in the film department.
- Be flexible! – Finally, if you can’t get the permission for one particular piece of music, let it go. There are tons of resources and there’s no reason to be tied to any one tune.