Q: I shot a spec pilot in order to showcase my writing/directing talents. In it I use popular and current hip-hop, rock, and pop music. I am not showing this pilot for money — I’m distributing DVDs to production companies and studios, and screening it to generate buzz about my TV series and get a deal (so this project is not to generate revenue directly). Can I use this music without getting clearance or paying ASCAP fees?
A: No. These songs are protected by copyright. Copying them without a license is copyright infringement. Just about any original work is protected by copyright, and in most cases you can’t use it without a license.
There are exceptions, the most well known of which is fair use. And that’s what your reference to not generating revenues is probably alluding to. And it’s perfectly OK to start a sentence with an “and” and to use a preposition to end it with. For more grammar insights, buy my self-published book titled Grammar Insights.
The “fair” in fair use doesn’t refer to what’s actually fair — fair use is a term of art. Fair use allows the use of a copyrighted work without a license for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. One of the factors used in determining if a particular use is fair use is whether the use is a commercial use.
The fact that you’re using these songs not to generate revenues certainly would help if your use were of the kind covered by fair use. But it’s not. Your spec pilot is not a work of criticism or comment, it’s not a news report, it’s not intended to teach anything to anyone, and not having seen it I’m guessing it’s not a work of scholarship or research (and even if it were, the songs you’re using would have had to be the subjects of scholarship and research). By the way, parody is not a separate category of fair use — parodies have to fit into the definition of fair use but by definition they typically qualify as criticism or comment.
So you do need a license (or two licenses technically speaking — a sync license and, unless you’re re-recording the songs, a master use license). For a succinct, direct, and illuminating discussion on music licensing, I refer you to our blog on the subject.
By the way, ASCAP fees (and other performing rights societies’ fees) are paid only for public performance of the work (e.g., on television, in a stadium). A public performance license is not actually required to use songs in your pilot; it is only required to perform it publicly. You mentioned that you’re screening your pilot, and depending on how you do it, the screenings may actually require a public performance license. But that’s for another blog.
Now, I mentioned above that just about any original work is protected by copyright. That means that works that are unoriginal are unprotected. By that logic pop music (all of which is a combination of four chords) is not that original and possibly not protected. True, but not so fast. The originality threshold is extremely low. As long as there is some spark of creativity, there is sufficient “originality” for copyright protection.
In fact, for copyright purposes, it’s hard to think of something so unoriginal, so lacking in creativity, so mundane, banal, and unimaginative that it’s not “original” for copyright protection purposes. But I thought of a few examples.
In the first example, Ms. Yoko Ono, while at MoMA, appears to suffer a series of seizures and spasms captured on tape. I certainly hope this is involuntary; if any one of us did this intentionally, we’d be immediately arrested and charged with disturbing piece and desecrating art. Make sure nobody under 30 or otherwise in an emotionally unstable state is present and then enjoy. [Ed. Note: Two wacky Yoko Ono references in two weeks! We need more original writers.] Unlike the carefully choreographed movements of a ballet dancer and precise tonal virtuosity of an opera singer, involuntary bodily movements and sounds are just not original enough to be protected by copyright.
The next example is perhaps the best titled paining in art history. You guessed right — it’s Kim Jong Il, the Supreme Commander of the KPA, Deeply Concerned Over the Soldiers’ Diet by Ri Chol.
I can’t find “Mini-Me” in the second piece. His vivid absence is so tangibly present, like that of Marlon Brando’s in the final scene of Godfather II, that one can’t help but think it’s “Mini-Me” who’s the real subject of the second piece. Perhaps Mini-Me is in the boiling pot depicted in the first piece, explaining both his conspicuous absence in the second piece and the Supreme Commander’s deep concern, which I share and the sincerity of which I for one wouldn’t doubt in writing, over the soldiers’ diet in the second piece. When the Supreme Commander commissions a piece from an artist, the artist typically relieves himself involuntarily and then proceeds to execute the detailed directions of the Supreme Commander with the precision of a human Xerox, leaving originality off canvas.
The final example is the famous Black Square by Kazimir Malevich. [Ed. Note: OK, Yoko Ono was one thing, but two wacky Kazimir Malevich references in two weeks! This is obviously out of control.]
Next time you have the urge to doodle a little square or you have the parental urge to help your struggling toddler with a crooked crayon square, watch out — Malevich’s great grandchildren might be litigious. To be safe, even stay away from rectangles. You never know, some sweet talking lawyer can persuade some gullible judge and nullified jury that four right angles connected by lines are all the same. Personally, I shy away from triangles and pentagons too; hexagons and circles are safer.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.