Vondran Legal® - Social Media and Intellectual Property Law - Is background music fair use?  Call us if you are dealing with a Live Streaming or Broadcasting legal issue!  (877) 276-5084.

Introduction

More and more online platforms are allowing users to GO LIVE with streaming, or even with group podcasting (which is what X, formerly Twitter, is now offering with their "spaces" service).  This service allows people to start a "space" and essentially invite or entice people to come visit the space for either a discussion about an important topic or engage in some other type of conversation.  One question that comes to mind is whether you can, in essence, start your own radio station on spaces.  Well, the answer to this is NOT LIKELY, but what about having a discussion with a 1,000 other people where the "host" of the show is playing music in the background.  Would this be considered copyright infringement where one of the music companies, such as ASCAP, BMI, or SESAC might try to hit you up for a license.  Or worse, an artist and their copyright counsel might try to sue you for federal copyright infringement, or else DMCA you via the platform.

In general, and solely in my opinion (do not rely without seeking legal advice), minimal background music, not easily recognizable, might be okay under fair use principles (or the concept of de minimis use), but it is also important to consider the platform's community guidelines and terms of service. Let's take a look at these important social media performance and broadcasting issues.

Twitter "X" Spaces Community Guidelines

Here are a few community rules to keep in mind when broadcasting through "spaces" from the X website:

As a Host, you are responsible for promoting and supporting a healthy conversation in your Space and to use your tools to ensure that the X Rules are followed. The following tools are available for you to use if a participant in the Space is being offensive or disruptive:

Revoke speaking privileges of other users if they are being offensive or disruptive to you or others

Block, remove or report the user.

Here are some guidelines to follow as a Host or Co-Host:

Always follow the X Rules in the Space you host or co-host. This also applies to the title of your Space which should not include abusive slurs, threats, or any other rule-violating content.

Do not encourage behavior or content that violates the X Rules.

Do not abuse or misuse your hosting tools, such as arbitrarily revoking speaking privileges or removing users, or use Spaces to carry out activities that break our rules such as following schemes.

"X" Copyright Policy

What types of copyright complaints does X respond to?

Potential enforcement guidelines:

According to their policies and enforcement page:

Our enforcement philosophy
 
We empower people to understand different sides of an issue and encourage dissenting opinions and viewpoints to be discussed openly. This approach allows many forms of speech to exist on our platform and, in particular, promotes counterspeech: speech that presents facts to correct misstatements or misperceptions, points out hypocrisy or contradictions, warns of offline or online consequences, denounces hateful or dangerous speech, or helps change minds and disarm.

Thus, context matters.

Copyright Fair Use Principles

X also gives a short overview of fair use principles that may result in their refusing to enforce a DMCA takedown request.

Certain uses of copyrighted material may not require the copyright owner's permission. In the United States, this concept is known as fair use. Some other countries have a similar concept known as fair dealing.

Whether or not a certain use of copyrighted material constitutes a fair use is ultimately determined by a court of law. Courts analyze fair use arguments by looking at four factors:

• The purpose and character of the use.
  
  • How is the original work being used, and is the new use commercial? Transformative uses add something to the original work: commentary, criticism, educational explanation or additional context are a few examples. Transformative, non-commercial uses are more likely to be considered fair use.
• The nature of the copied work.
  • What is the copied work itself? Is it factual (example: a record of a historical event) or fictional (example: a novel or Hollywood blockbuster)? Use of factual works weighs in favor of fair use.
• The amount and substantiality of the copied work.
  • How much of the work was copied? Copying short excerpts is more likely to be found fair use than copying an entire copyrighted work.
• The effect on the copied work's value.
  • Will the copying harm the potential market for the copyrighted work by effectively creating a substitute or replacement for that work?  If so, the use is probably not fair use.

17 U.S.C. § 107. These four factors are neither exhaustive nor intended to be a rigid framework. Instead, they "set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances[.]" Google, 141 S. Ct. at 1197. "All are to be explored, and the results weighed together, in light of the purposes of copyright." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994).  See Cooley v. Marcus (W.D.Mich. July 24, 2023, No. 1:23-cv-86) 2023 U.S.Dist.LEXIS 127119, at *9.)

Fair use determinations are made on a case-by-case basis, and there is no clear formula to determine whether a use may be found to be fair. If you are unsure whether a particular use of copyrighted work might be a fair use, you may want to seek legal advice. X is unable to advise whether your use may be considered fair use or not.

Attorney Steve® Tip:  I would be careful playing popular songs on "spaces" or videos you post on Twitter or in other live feeds.  If you are using third party music clips or songs without a license or permission (ex. a creative commons license), make sure you are only using very short clips, or have it playing very low in the background.  This could also be risky.  I have a music service I pay for called storyblocks and this allows me to make certain uses of music clips in their libraries.  Always check the licensing terms of these agreements before proceeding to go live or post this type of content.

What is "De minimis" use?

Other minimal (trivial) uses of third party content may also fly under the legal radar.  Here is a case that touched on this legal principle.  Again, it is tough to rely on this as a defense (notice the case still found its way to federal court):

"To establish that a copyright infringement is de minimis, the alleged infringer must demonstrate that the copying of the protected material is so trivial 'as to fall below the quantitative threshold of substantial similarity'" Gordon, 345 F.3d at 924 (quoting Ringgold, 126 F.3d at 74).

In cases involving visual works, courts consider the "amount of the copyrighted work that is copied," as well as "the observability of the copied work—the length of time the copied work is observable in the allegedly infringing work and such factors as focus, lighting, camera angles, and prominence." Ringgold, 126 F.3d at 75.

As to the amount of the work copied, the Court construes the complaint in Plaintiffs' favor and infers that Defendant copied Plaintiffs' entire works. As to observability, courts generally find that use of a visual work within a video is de minimis when portions of the work are visible at a distance within the video, or when the work is shown only briefly and out of focus. 

In Gordon, for instance, the use of copyrighted illustrations in a video was de minimis because the illustrations "appear[ed] fleetingly" and were "primarily out of focus." Gordon, 345 F.3d at 925.

Similarly, in Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998), the use of copyrighted photos in a video was de minimis because the photos were "displayed in poor lighting and at great distance." Consequently, they were "virtually unidentifiable." 

In contrast, Plaintiffs' works appear prominently in Defendant's video. They fill most of the screen when shown and they are not blurry or out of focus. In other words, they are readily observable. Indeed, the works appear to have been purposefully selected for the Trailer Video in order to convey specific information about Elle or her relationship with Plaintiffs. The works are not presented in the background.

Defendant asserts that her use of Plaintiffs' works was de minimis because each photo or video clip is displayed on screen for only a few seconds in the Trailer Video. It is true that the courts in Gordon and Sandoval concluded that  displays of copyrighted works in a video for even longer periods of time was de minimis. See Sandoval, 147 F.3d at 216 (artwork was on screen for a total of 35 seconds); Gordon, 345 F.3d at 924 (one illustration was on screen for 10.6 seconds and another was on screen for 7.3 seconds). However, those cases are distinguishable. The copyrighted works in those cases were not "displayed with sufficient detail for the average lay observer to identify even the subject matter of the [works], much less the style used in creating them." Sandoval, 147 F.3d at 218. Here, a viewer of the Trailer Video can readily identify the details of Plaintiffs' works, including their subject matter and the means used to create them. Thus, Defendant's use was not de minimis."

In another case dealing with alleged music infringement, a California federal district court noted:

"Plaintiff contends that California's statute does not provide for de minimis use. However, the test to determine whether there has been unlawful copying of protectible material is whether the two works, when compared, show such pronounced similarities of substantial portions of details, sequence of events, and manner of expression and treatment, as to warrant inference of copying. Barsha v. Metro-Goldwyn-Mayer, 32 Cal. App. 2d 556, 561, 90 P.2d 371 (Ct. App. 1939) (discussing copyright common law). The Court infers that where the use of a party's copyright protected art is de minimis, the use does not have "pronounced similarities of substantial portions."

Courts have found de minimis use of music excerpts where several seconds were used from a piece that lasted several minutes long. See e.g. Steward v. West, No. CV1302449BROJCX, 2014 U.S. Dist. LEXIS 186012, 2014 WL 12591933, at *9 (C.D. Cal. Aug. 14, 2014) (finding fair use where the sampled portions lasted only about a half-second in time and the recording of plaintiffs' song is over seven minutes in length); VMG Salsoul, LLC v. Ciccone, No. CV 12-05967 BRO (Cwx), 2013 U.S. Dist. LEXIS 184127, 2013 WL 8600435, at *11 (C.D. Cal. Nov. 18, 2013) (finding a quarter-second sample not quantitatively significant to a seven-minute recording); TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 605 (S.D.N.Y. 2013) (finding a three-second drum sequence not quantitatively significant to a six-minute song).

However, even where the sheer quantity of time used was minimal, courts have considered the characteristics of the voice and sounds in determining if the use was de minimis. See e.g. Pryor v. Warner/Chappell Music, Inc., No. CV 13-04344 RSWL, 2014 U.S. Dist. LEXIS 85930, 2014 WL 2812309, at *7 (C.D. Cal. June 20, 2014) (finding that even though the sampled piece was half of a second in a six-and-a-half-minute recording, the signature voice dissuaded the Court from finding de minimis use on a motion to dismiss).

The Court finds that, at this stage, Plaintiff has sufficiently alleged that the copying can be substantial enough to constitute infringement. Although Defendant only allegedly sampled "3.094 second fragment" of the bridge of the Recording, which is about two-and-a-half minutes long, Plaintiff alleged that Defendant sampled a segment containing Plaintiff's distinctive vocal "Ohh" followed by a fast-paced drum roll, instrumental guitar, high note on a saxophone, and Plaintiff singing "Yeah." Based on Plaintiff's allegations of Plaintiff's signature voice and unique composition, the Court concludes that a jury could find the two pieces substantially similar. Thus, the Court DENIES Defendant's Motion on this ground.   See Johnson v. UMG Recordings, Inc. (C.D.Cal. Oct. 23, 2019, No. 2:19-cv-02364-ODW (SSx)) 2019 U.S.Dist.LEXIS 184455, at *10-12.).

Conclusion

Before using third-party unlicensed video or music clips in your podcast, broadcast, videos or live-streaming, make sure you are thinking about the United States Copyright laws, and whether someone might actually sue you. The penalties for willful copyright infringement can be stiff.  If you are not sure if your use is de minimis, or constitutes a fair use (applying the four factor test) you can also engage a firm like ours to provide a fair use opinion letter.  This can help you avoid legal problems, or, may help reduce your liability exposure if you are sued.

Contact a California IP & Social Media Law Firm

Since 2004, Vondran Legal® has helped thousands of clients resolve IP and social media disputes involving software, photographs, music, video, DMCA disputes, mobile application and many other types of disputes where a competent litigation firm is required.  Call us to discuss your case at (877) 276-5084 of fill out the contact form on the side of this page.