Is licensing required to use an excerpt of a song within a recording?

Question

I'm currently recording a cover version of a song for inclusion on a compilation album which will be sold on Bandcamp. Because Bandcamp does not pay mechanical royalties, the organiser of the compilation (and owner of the Bandcamp account) is paying up front for the song licenses.

However, I want to include excerpts from two other songs within my recording - it would be an entirely new recording by me with no samples, but there would be two lines from two different songs along with the recognisable melodies. The entire recording is around 4 minutes, the two excerpts are around 10 seconds each, so they are not a substantial part of the piece - it is not a 'medley', the excerpts are meant as homages

The focus of this question is this : Would rights for all three songs need to be obtained, or just the 'main' song being covered?

In answering this question I would appreciate if you would consider and explain:

• Could the small excerpts be considered 'fair use'?
• Does it make a difference that one of the excerpts is by the same artist as the main song being covered? As the original artist will be paid the appropriate licensing for the whole song, would this negate the need to paid / negotiated for the tiny segment of another of their songs?
• Although the compilation is being 'sold' on Bandcamp, 100% of the proceeds are going to a fundraiser to pay for a child's medical bills (NOT an official charity in any way)

Answer 1

Whether the use of excerpts from songs protected by copyright in the cover version of a different song is a "fair use" under US law is always a fact-driven question, and often there is no clear answer to fair use issues short of a lawsuit.

One must remember that fair use is a specifically united-states legal concept, and that reproduction of such a cover version outside the US would not be protected by fair use, even if it was fair use under US law.

Fair use is defined by 17 USC 107. That law spells out the four factors that must always be considered in any fair use claim. They are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

These have been explained and analyzed in several answers here on law.se, recently including this answer.

In this case the commercial nature of the compilation probably causes factor (1) to lean against fair use. The creative character of the songs being used will cause factor (2) to lean slightly against fair use. That the use is for a charitable purpose might have a positive effect on factor (1), although it does not fit the "educational" purpose specifically mentioned in the law. I don't see how this would be in any way relevant to the other three factors, but it might influence the decisions of copyright owners.

There is not enough information in the question to even approximate an analysis of the other two factors in this case.

Note that the "substantiality" mentioned in factor (2) refers to how much of the source work is used, not how large a part of the resulting work it forms. Note also that there is a wide range of what has been acceptable here. In one famous case (Harper v Nation Enterprises) some 300 words of a 500 page book were found not to be fair use because they were held to be the "heart of the work"; in that case there was also a substantial market effect.

One might want to consult a lawyer with expertise in copyright and music to get a better idea if the specific use seems likely to be a fair use. Alternatively, one could ask the copyright owners of the works of which excerpts are to be included if a license can be obtained. Some owners will in some cases provide licenses for a small fee or even for no fee if the source is properly acknowledged. Others will not.

Licensing of one song by a given artist does not affect whether use of another song by the same artist is or is not fair use, but it might influence the willingness of that artist to license the second song on favorable terms.

Answer 2

I want to include excerpts from two other songs within my recording - it would be an entirely new recording by me with no samples, but there would be two lines from two different songs along with the recognisable melodies.

Covering a song in a recognizable fashion is, in practice, only rarely fair use (a sample almost never is), but the license can be obtained as a matter of right for a third-party determined fee. But for a short excerpt, negotiation is usually a better deal.