Music For Personal Use and Fair Use Doctrine

[Shotster]

I've searched the forums for music related topics, but I couldn't find this specific scenario addressed.

First, if I have legitimately obtained music (purchased CD, downloaded from iTunes, etc.), am I allowed to incorporate some of that music into a slideshow for personal use only? In other words, I'd be making my own presentation for my own enjoyment from images I have created and from music that I legally purchased. This would be something I might share with immediate family, but that's it.

Assuming the above is acceptable under the "fair use doctrine", what about the following... Let's say the situation is basically the same except that I know nothing about creating a slideshow on a computer, so I hire someone else to use my images and my legally obtained music to create it for me. They provide me with a single copy of the work and retain none of the images or music themselves - i.e. they simply provided a service (their time and expertise) for which they were compensated.

Is there any legal problem with either scenario? If so, why? Thanks for any insight or clarification.

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Steve

[Mr. Knowitall]

First, if I have legitimately obtained music (purchased CD, downloaded from iTunes, etc.), am I allowed to incorporate some of that music into a slideshow for personal use only?

Yes, no, maybe. If it's from iTunes or a similar download service and you either violate the license agreement or break the encryption, that's not permitted. Shows for your family aren't technically "personal use", but who in your family will turn you into ASCAP, BMI, SESAC or RIAA?

Let's say the situation is basically the same except that I know nothing about creating a slideshow on a computer, so I hire someone else to use my images and my legally obtained music to create it for me.

Or is it that you want to offer such a service and are looking for a way to work around the law? As with services which photocopy coursepacks, it would presumably be the service provider's responsibility to verify that the customer had appropriate licensing rights to utilize the copyrighted material and, if not, to decline to offer the service.

[Shotster]

Thanks for the reply.

Yes, no, maybe. If it's from iTunes or a similar download service and you either violate the license agreement or break the encryption, that's not permitted.

Understood. But I guess my question is more about what exactly constitutes violating the license agreement and what constitutes fair use. For instance, the following seems to indicate one might have more rights under the fair use doctrine than some would think.

http://www.eff.org/cafe/gross1.html

Personal use also permits music fans to make "mix tapes" or compilations of their favorite songs from their own personal music collection or the radio for their own personal enjoyment in a more convenient format, or "format shifting." Another example of acceptable personal use copying of a copyrighted work is "time-shifting," or the recording of a copyrighted program to enjoy at a later and more convenient time.

As new media present new ways for people to enjoy music, the public's fair use rights accompany them into the electronic frontier. Now, music fans have the right and ability to copy their own music collection onto their own computer storage device and create customized play lists for their own personal use and enjoyment of their music.

Unfortunately, it doesn't mention anything about combining my legally obtained music with my own images - a common practice now with digital cameras and movie making software (such as Apple's iMovie). I'm wondering if that kind of use falls under the fair use doctrine - assuming of course that it's strictly for personal use.

Or is it that you want to offer such a service and are looking for a way to work around the law?

What I'm doing, in case it's unclear, is presenting a hypothetical scenario in order to try to better understand the law. If I were interested in breaking the law, I wouldn't be posting here. I could instead do as I please and just claim ignorance.

As with services which photocopy coursepacks, it would presumably be the service provider's responsibility to verify that the customer had appropriate licensing rights to utilize the copyrighted material and, if not, to decline to offer the service.

Ok, that's helpful and actually makes sense. So then it boils down to what rights the customer has been granted to the material; and the fact that someone else would charge to perform the work is not relevant. Is that correct?

BTW, are you an intellectual property rights attorney, or do you just play one on the Internet?

Thanks for the help,

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Steve

[Mr. Knowitall]

Understood. But I guess my question is more about what exactly constitutes violating the license agreement and what constitutes fair use.

And my answer was focusing on what doesn't constitute fair use - use of encrypted materials in a manner which necessitates breaking the encryption. And like it or not, licensing agreements which limit how many copies you can make of a piece of downloaded music, and limit how the music can be used, may play an as-yet-unfully-tested role. If you're speaking specifically of Apple, iTunes and iMovie, I am not sure that it is possible to accidentally violate the terms of use for an iTunes song with Apple's software, and they want people to use iTunes and iMovie and they wrote their software to be protective of their IP rights.

BTW, are you an intellectual property rights attorney, or do you just play one on the Internet?

If I wanted to give you legal advice as your intellectual property, let's say we would be starting with your agreeing to pay $300 or so per hour.

[Shotster]

And my answer was focusing on what doesn't constitute fair use

Yes, but most of what you point out is pretty straightforward. Obviously, anything commercially related or trying to circumvent the DRM scheme is unlawful. That said, there was a recent news item about a very savvy computer programmer who reversed engineered Apple's technology which allows their music to be played on iPods only. His lawyers claim he's on solid legal ground, and of course he has the attention of lots of makers of other MP3 players. But we'll see how it plays out (no pun intended). Of course, that's separate from, but somewhat related, to this thread. If, for example, the programmer is successful in selling his technology, that would mean consumers have more choices for players. What are the implications of that? Are consumers violating a copyright if they play their music on a non-Apple player? Are the 3rd party MP3 players setting themselves up for litigation by Apple and/or the music industry? It raises some interesting issues.

And by the way, I'm not talking solely about downloadable music. Despite the iTunes craze, CD's are still prevalent, and it's not clear to me exactly what rights I have with those. For instance, I just pulled out a music CD and could find no license agreement printed anywhere on it. The only thing it says in the lower right corner on the back is:

All Rights Reserved. Duplication, Hiring, And/Or Lending Of This Record Prohibited

But again, what is "fair use" by the consumer who paid for it? If it's "fair use" for me to use portions of tracks to create a memorable slideshow for myself using my images, then is it a violation if I pay someone else to do it for me? It would seem to me that it is not. To my way of thinking, it's similar to paying a Web developer to build my Web site using media (images, etc.) which I have been granted the right to use. The developer is simply being compensated for their time and know-how. They don't have to pay a separate license fee for the copyrighted material that they're integrating into the site - so long as it's done in accordance with the agreement between the copyright holders and me.

If I wanted to give you legal advice as your intellectual property, let's say we would be starting with your agreeing to pay $300 or so per hour.

No thanks, I'm not seeking your legal advice (assuming you're qualified to provide any). I just wanted to know how much weight to give to your comments. Since you didn't answer my question, I shall treat your input accordingly. I'm not the type who believe everything they read on the Net - even if the domain name does have "expert" in it.

No offense intended, by the way.

Regards,

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Steve