Carolina In My Mind: When Can I (Legally) Use a Popular Song?

Most of the basics of music copyright are the same as for other formats.  The rules about how copyright occurs and for fair use are the same for music as they are for other media.  Nevertheless, the world of music copyright and music licensing is particularly fraught because of the amounts of money involved, the popularity of much of the content, and the ease of reproduction and distribution.

One of the things that is different about music is the variety of licensing schemes and the variety of rights that they can cover.  For example, there may be different copyrights in all of the following:  particular recording of a song, in the music that is used, and in the lyrics.

This is reflected in a number of different licensing schemes.  For example, it is possible to get a compulsory license (a license which the rights holder must grant) to make a cover of a song.  Many venues where musicians perform pay a blanket license to cover the rights holders’ fees for the right of public performance.  Other music licenses include synchronization rights to provide background music for a video.

Although the analysis with respect to market harm can often be restrictive, an assertion of fair use can apply to music, especially in an educational context.  One of the most important recent fair use cases—Campbell v. Acuff Rose, involved a defendant who won a copyright lawsuit with a fair use defense.  As with any content, the user should look at the type of use, the amount and substantiality used, and the effect on the market.

If you are uploading music—either your own or someone else’s– to a social media site, the terms of use for that site are also relevant.  Some sites, like YouTube, have software that detects when other rights holders’ music is uploaded and either remove the music or add advertising around the video.

If you have questions about music as either a consumer or creator, contact us at the Scholarly Communications Office.