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If you want to use a short clip from your favourite pop song in your own digital content, read this article first. You do not need to have used a large part of a song to infringe upon someone else’s copyright. The test depends whether you have appropriated a ‘substantial part’ of the work. In most cases, you will need permission from the original artist to avoid infringing their copyright

Copyright

Copyright is an automatic intellectual property right in Australia that attaches to the expression of creative and original material works, including musical works. This entitles creators to exclusive rights to reproduce and perform these songs. In Australia, copyright lasts for 70 years after the creator’s death, so it is likely that the songs you are considering using will be covered by copyright. 

These rights allow musicians and artists to derive an income from their work through ongoing royalties and licence fees. If you use a portion of an artist’s song without their permission, you may be denying them an important revenue stream. 

Copyright Infringement

If you reproduce or perform someone else’s musical work without their knowledge or permission, you may be infringing upon their copyright. A copyright owner has both moral and economic rights in their work. Moral rights include the rights to:

  • have your work attributed to you;
  • stop others from attributing your work to them; and
  • stop your work from being treated in a way that damages your reputation, such as distortion or alteration. 

Economic rights include the rights to prevent others from infringing on your work and the right to authorise others to use your work, through assigning or licensing. In relation to musical works, economic rights also include the exclusive rights to:

  • reproduce the work;
  • publish the work;
  • perform the work in public;
  • broadcast the work or make it available online; and
  • make an adaptation of the work.

If you infringe an artist’s copyright, you could face:

  • an injunction (i.e. an order to stop further use of their work); or
  • damages (i.e. compensation for the loss the artist has suffered from you using their work without their permission). 

What If I Only Use a Very Small Part?

The quantity of the part of the song you use does not matter as much as its quality. Is the portion you are using an integral part of the song? Copyright infringement will occur where you have used a ‘substantial part’ of the work, but a substantial part can still be a very short clip of the song if it: 

  • is an important and essential part; and 
  • was the result of skill and time. 

In most cases, you will need permission from the copyright owner to use any part of their song. 

Exceptions to Infringement

In limited circumstances, you may be able to use a portion of a song without seeking the artist’s permission first. These are known as the ‘fair dealing’ exceptions to copyright infringement. 

Firstly, the use must be fair, having regard to its purpose, the nature of the work, the effect on the value of the work and the amount and substance copied. 

Secondly, the use must fall within a list of limited purposes, namely:

  • research or study;
  • criticism or review;
  • reporting news;
  • giving professional legal advice; and
  • parody or satire.

For example, if you are using a snippet of a song as part of a parody music video that you have created, your use of the song may come under this exception. This means that you may not need to seek permission from the artist.

Parody uses humour to comment on or criticise a work. Ultimately, your use of the song in this way must create an entirely unique expression of work. 

If you are using a portion of a song in your digital content for criticism, review or reporting news, you also have an obligation to credit the original artist and the title of the song. In other cases, you may still need to get the artist’s permission, even though you may credit them. 

Key Takeaways 

It can be very tempting to utilise another person’s song for your own creative endeavours in producing your digital content. However, you should proceed with caution. Copyright, which exists automatically in the expression of musical works, includes the exclusive right to reproduce the work. In most cases, you will require permission from the copyright owner to use even a small portion of a song, if that portion can be considered a ‘substantial’ and important part of the song. If you need help with avoiding copyright infringement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is copyright?

Copyright automatically attaches to expressions of creative works. Copyright gives the creator of the work certain rights, which last for the duration of the creator’s life plus 70 years.

Is it legal to use a small part of a song in my content?

Even using a small segment of a song may be copyright infringement. The key question is whether you have used a substantial and important segment of the song.

Is it copyright infringement if I use a song in satire?

If the purpose of your work is parody or satire, you can use part of another person’s work so long as you use their work fairly. This is one of the few exceptions to copyright infringement.

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