A mea culpa note: I originally wrote this post about a week ago. At that time, I thought that SF360 was moderating their comments and not approving mine, for reasons that I implied might have something to do with the policy position of my remarks. I was wrong — there was an innocuous, technical reason that my comment did not post. Thanks to SF360’s editor Susan Gerhard for helping me get my comment up, and my most sincere apologies to her and everyone at SF360. I made a mistake, and I thank Susan for being so gracious in the way that she corrected me.
I made a comment recently on a SF360 article titled “What you Need to Know to License Music for Film”. Here is the relevant bit of the article that I was addressing:
Licensing can be a complicated, frustrating process. Yet, the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use. Therefore, to avoid litigation a filmmaker must acquire the necessary licenses before including any music in their film. [emphasis added]
As I wrote in my comment, this characterization of fair use is, at best, highly misleading:
George [Rush, who wrote the article] says that “the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use.” This is simply not true; there are a lot of uses of music in films — particularly documentary films — that can be considered fair use. There is a Documentary Filmmakers’ Statement of Best Practices in Fair Use, and there are even companies that issue errors and omissions insurance based on fair use claims.
Before using any music in your film, you should definitely seek legal counsel. But don’t assume that you *always* have to license music. Despite the grumblings of music labels, fair use still exists.
George is right that the issues are complicated and that sometimes hiring a professional (like him) to help negotiate various music licenses is the proper way to proceed. But that’s not always true.