Fair use of licenced music snippets in a commercial, educational product

Question

I have a commercial product that teaches music theory using a series of short videos. In an upcoming video, I'd like to give examples of particular theory concepts using several short snippets of popular music (~10 seconds each). The snippets would play a minor overall part in the lesson.

I have three questions.

1) Would this usage (several short snippets of licenced music) be considered "fair use" in a commercial, educational product?

2) Instead, if I were to record myself strumming the chords of that particular song snippet (~10 seconds), would it be fair use to use that recording in the video?

3) Is there any issue simply discussing the songwriting (e.g., chord progression or melody) of a piece of licenced music in the video?

Answer 1

It's of course safest to obtain licenses for any copyrighted work you use, but I see a strong argument supporting a fair-use defense here.

The factors for fair use are set out in 17 USC 107:

1. The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: Your use is educational, which cuts in your favor, but it's commercial, which cuts against you. Also supporting a fair-use defense is the fact that the samples play "a minor overall part in the lesson." Overall, I think this factor works in your favor.

2. The nature of the copyrighted work: Musical recordings are highly creative works, near the heart of the purposes underlying copyright protection. This factors cuts against you.

3. The amount of the portion used in relation to the copyrighted work as a whole: A 10-second snippet is a very small portion of virtually any song. This cuts strongly in your favor.

4. The effect of the use upon the potential market for or value of the copyrighted work: It seems unlikely that people are going to use your product as a substitute for the original works. If you're willing to pay for the song, you probably want more than the 10 seconds in the video, and you probably don't want to have to sit through a bunch of music theory before you can hear it. This is the most important factor and it cuts pretty well in your favor.

These factors aren't just added up; they're all balanced against each other in a complicated calculus that is, in the end, mostly just a judge making a subjective decision. But there's a lot cutting in your favor here, and I think that it would be hard to sustain a copyright-infringement action based on the facts you've described.

Answer 2

It is best to just ask the owner of the copyright if you can use the material.

Using short snippets of the song for commentary is most likely ok, but the artist can still go to court if he/she feels too much of the song is used.

The court would look at whether your use of the songs infringes on the artist's ability to be compensated.

This site says it best:

But under fair use guidelines, the borrowed work must not detract from the profits of the original work, and it can’t act as a substitute for the original if it were broadcast on the radio or in a club. https://theproaudiofiles.com/music-copyright/

Using the shortest sample you can to illustrate your point should be OK as long as it is not enough to detract people from buying the original recording. Contact the artist though to avoid any confusion.