| Entertainment & Business Law Services - Sisto |
Production Incentives
I am a documentary film producer and would like to use music that is protected by copyright in my film. Do I need permission to do so if I use less than 5 seconds of it?
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You are referring to the notion of "de minimus" under the "fair use" doctrine ("fair dealing" in Canada) and the widespread myth that there exists a fixed minimum amount of use that is permitted under the fair use doctrine. Producers have (improperly) adopted the notion that using less than 5 seconds of a proprietary musical work does not require a license - FALSE. There is no statutory or jurisprudential basis for this. Nor is there a minimum word count when using proprietary literary works. The notion of "de minimus" does indeed exist in law, but it is not a test that is applied based on a fixed minimum amount of time or words used without permission. It's far more complicated than that. The courts (in the U.S.) have found that using as little as three musical notes over two seconds constituted a copyright violation that was not saved by the fair use doctrine (Bridgeport Music v. Dimension Films). In other cases, defendants have invoked the de minimus test successfully. Therefore, when in doubt, the rule of thumb is get permission or don't use it. |
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