Steven C. Beer
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Practicing with Franklin, Weinrib, Rudell & Vassallo in New York City, Steven C. Beer is a well established presence in media and entertainment law. Also host of the Prudent Parents Podcast, Steven C. Beer has extensive experience in music licensing and addressing questions such as whether music can be included within documentary movies on a fair use basis.
While copyrights serve to encourage the creation of new works by providing a monopoly on specific rights over a period of many decades, fair use rules within the law provide an exception to this protection. This reflects the social benefit we receive from the work of journalists, teachers, documentary filmmakers, critics, and scientists.
When claiming “fair use” for music accompanying a film, the barriers are placed quite high. Commercial uses are disfavored, while transformative uses are extremely limited. With the general purpose of music being one of triggering an emotion or physical movement such as dance, these purposes are not considered transformative. Within the fair use context, the music typically must be used for a mission-specific purpose such as parody, criticism, or social commentary.
Other factors defining fair-use appropriation of music in films include how much of the piece is being borrowed and what kind of borrowing is involved. The latter question keys into how broad the work’s distribution will be and whether the use could potentially decrease the economic value of the original work for the owner of the copyright.
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