This month’s question comes from a woman wanting to transform the lyrics of a popular song to fit the message of a PSA. In our answer, we address not only her potential Fair Use of the song, but also how to defend yourself in the case of a potential takedown or cease-and-desist letter once the PSA is online.
Dear Center for Social Media,
I’m working on a Public Service Announcement for the website of a non-profit organization. We expect to use it on the organization’s website, and also offer it to local TV stations. I’d like to use a popular, recognizable song in the background, but rather than use the original lyrics, I’d like to use lyrics I wrote to reflect the mission of the non-profit organization. Is this considered a transformative fair use of the music, or should I still contact the original owners to request permission for use?
First, I would encourage you to carefully read the Documentary Filmmakers’ Statement of Best Practices in Fair Use and also the Code of Best Practices in Fair Use for Online Video. They are both good guides to the basic logic of fair use in audio-visual work. Neither, however, gives you guidance on this particular scenario, which isn’t addressed directly in any code for fair use. So this is a case where you have to do two things: 1) understand the logic of fair use, and 2) understand the risk. First the logic: Both codes stress that fair use generally depends on the answer to two questions: Are you using the work for a different purpose? Are you taking the appropriate amount for that other purpose? You need to ask what the purpose is for taking an entire soundtrack (or even stanza) of a highly recognizable song. If it is merely because it is widely known and therefore people will like listening to it, that merely reproduces the original purpose, and you would want to try to license. You may have a transformative reason for using that particular song—perhaps its original lyrics have some ironic relationship with your non-profit’s work. If you do decide to fair use the music, then you need to understand risk. Online, it is pretty easy for copyright holders, using automated programs, to detect their copyrighted material, especially on any major video platform. So it is possible that, if you put this online, you may be challenged. While takedowns and cease-and-desist letters are scary and statutory damages can hypothetically be high, in practice you will always get an opportunity to respond before litigation. If you want to assert fair use, you will be able to demonstrate the reasoning you employed in order to make the decision. (It’s nice if you actually made a note somewhere of this, at the time you did it; that shows you thought about it.) If the copyright holder does not accept the logic and continues to call it infringement and you want simply to stop the hassle, you can always take the video down. Broadcasters have a much higher bar, and usually want to stay within situations defined by codes of best practices in fair use, so you may find—even though you believe you have a good fair use rationale—that broadcasters will not be comfortable accepting the PSA. By the way, even if you do opt for fair use, that doesn’t keep you from acknowledging the original work; crediting the work shows you understand it isn’t yours.
Good luck on your project!
The Center for Social Media