Music Blogger or Thief: When Content Use Stops Being Fair

For a thorough understanding of copyright infringement and fair use, a nice conversation with a lawyer is on store.

The popularity of music fanzines dates back to the early 1960s. Since the good old days of classic rock, the amount of fanzines exploded and eventually went online. Today, fanzines come in many different forms, ranging from blogs to ezines (let’s just refer to them all as blogs and bloggers for brevity-sake).

Many underground artists embrace fanzines, welcoming the grass-roots platforms as a means of free publicity. Major labels, on the other hand, often browse blogs, social media sites and other online fanzines looking for infringing use of their artists’ music, photos and lyrics.

When news arose that record labels, the RIAA and other content owners were sending cease and desist letters to YouTube accounts, bloggers and website owners, many bloggers find it difficult to understand the legal ways to promote artists, review music and publish online fanzines.

Under the Digital Millennium Copyright Act, copyright holders can use a notification procedure to request an ISP to remove allegedly infringing material from a web page. The copyright holder will then send a “Cease and Desist” letter under the DMCA. Oftentimes, the blogger’s web host will also send the blogger a “Notice of Infringement” informing the blogger that they will lose access to their site if they do not remove the allegedly infringing material.

At this point the blogger can either comply and hope they are in the clear or not comply and risk criminal and monetary ramifications. For a music fan trying to indulge in his or her passion for music, this process is daunting, scary and a reason to give up on blogging. So when does fan and music sites’ use of content cross the line from fair use to copyright infringement?

The obvious answer is to only use content that the content owner explicitly gives or licenses to the bloggers, and content that the blogger owns (such as pictures taken at a live event). For bloggers receiving content from record labels and promoters, this is easy. With most bloggers, on the other hand, this is not the case.

As with the original print fanzines, most online fan sites and blogs come from the creative energies of music fans who do not have personal contact with the artists or the artists’ personal. Fair use under section 107 of the 1976 Copyright Act allows bloggers to use some portion of the copyrighted material to comment on an artist’s work.

Under the notion of fair use, a blogger can use copyrighted work without permission if the use is “transformative,” so that bloggers can make a new creation. This transformative use allows bloggers to parody, criticize and comment on the copyrighted work.

Determining fair use is tricky, with no clear-cut test. Courts have come up with a list of factors to consider when determining fair use under section 107 under the Copyright Act:

  • the purpose and character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion taken;
  • and the effect of the use upon the potential market.
  • Under the purpose and character factor, courts look to see how the potential infringer uses the copyrighted material. The nature of use factor looks to see if the copyrighted work is unpublished or published, with bloggers having a stringer fair use argument with the use of published works over unpublished works.
    The third factor, the amount and substantiality of the portion taken, is often the most difficult to prove. A court is most likely to find in favor of fair use with very small amounts of use, which is often why many promoters misleadingly nicknamed this factor the “seven second rule.”

    The final, most important, factor looks to see how the use of the copyrighted works affects the copyright holder’s ability to profit in any potential market, regardless if the use is not competing with the original work. This factor, however, needs not be misconstrued to include negative commentary on the copyrighted work (such as a bad album review).

    Fair use is complicated to understand, and really does need explanation from a legal expert to understand, but bloggers can continue writing about the music and artists they love without fear of crossing the line into copyright infringement.


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