I just returned from a lively convention of a couple thousand high school broadcast journalists, video producers and filmmakers. The students descended on Disneyland, site of the convention, with cameras rolling and mics recording. Lots of creative energy in a place borne of creativity. It was great fun to watch.
Sadly, amidst all the youthful buzz and excitement, sat I. The lawyer.
The lawyer who answered over and over and over pretty much the same question: As long as I use just 30 seconds of music in my piece I’m good, right?
The question came up in every one of my various sessions at the convention. It came up in the hallways between sessions. It came up at lunch and even in an elevator, where I had about 20 seconds to respond before I had to get off at my floor. The last thing I saw, as the elevator door closed, was that, “You are kidding, right?” look.
Because as they took their raw footage back to their temporary production facilities to produce and polish into finished packages, most had one big question on their mind: how do I get some music into this thing?
Fortunately — and for the most part — most of the students I spoke to did understand that the law somehow limited their ability to just plop in the latest Lady Gaga or Jay Z song as background music. They weren’t exactly sure what those limits were, but they knew there were some. (That has not always been the case. Indeed, when the Internet first burst on the scene, many viewed it as a giant, electronic “candy store” where — with just the click of a mouse button — virtually the entire musical library of the 20th century could be had.)
The limit that most of them had somehow got in into their head was the “30-second rule.” That is, the rule that says as long as you use less than 30 seconds of a copyrighted work — audio or video — everything’s cool.
The problem is: There is no 30-second rule.
Or a 60-second or 15-second rule. I wish there was. My job would be a piece of cake. But there’s not. It’s one of those legal myths that was probably created from wishful thinking. Copyright law can be a bit daunting — particularly the part known as “Fair Use,” which — unless you get Ms. Gaga’s (and/or her record company’s and a few others’) permission — is likely the only way you’re going to legally get her stuff in a student project. Because the (nonexistent) 30-second rule was so easy to remember and so simple to follow, it took on a life of its own.
“Fair Use” is, indeed, an extremely important exception to the general rule that requires one to obtain consent before using a copyrighted work they don’t own or didn’t create themselves. It would, for example, allow you to use a short clip from “Bad Romance” in a review of Gaga’s music (but probably not simply as background music.) (Unfortunately, a detailed discussion of Fair Use is too much to cover here, but the Student Press Law Center’s Web site has much more.) But while “[T]he “amount and substantiality of the portion used” is one of the statutory factors to be weighed in making a Fair Use determination, 17 U.S.C. § 107(c), it is just one of four to be weighed by courts in determining whether Fair Use exists. So even when you use 30 seconds or less of a song, the other factors could come down against Fair Use. Also, the Supreme Court has said that a copyright infringement can take place even where the use is minimal if the use takes the “heart” of the work. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565. In fact, the group charged with umbrella licensing for the digital performance of sound recordings — SoundExchange — says on its Web site, “Generally speaking, one is not allowed to take the ‘value’ of a song without permission, and sometimes that value is found even in a three-second clip.” And a Recording Industry Association of America spokesman told the Student Press Law Center in December 2003 that any unlicensed use of music on a high school television broadcast—however minimal—would be pursued as an infringement if brought to the group’s attention.
Next time, I’ll just have to remember to wear my “There is no 30-second rule!” T-shirt.
Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.