Vondran Legal® Social Media, Entertainment & Intellectual property law - Soundcloud is tough platform to raise fair use rights.  Dealing with copyright or fair use issues on social media such as TikTok, Reddit, Souncloud, YouTube, Instagram call us at (877) 276-5084.

Introduction

So I had a friend on Facebook who was really going through a tough time.  She was asking for help and inspiration from "the village."  I remembered a time when I was stuck in the mud and ready to give up.  A friend had passed on to me the following strategy:

1. Pull up Wilson Phillips music
2. Find the song "Hold On"
3. Play it ten times in a row (or as many times as you need to) to start feeling strong positive thoughts (i.e. if you can just hold on for one more day, things will go your way)
4. Play it for as many days in a row until you do not need it anymore.

Well, I thought, you know, this is really good advice for a lot of people; why not make a short podcast about it?  So I did, and I added 15 seconds of the song (giving full credit) and just enough to illustrate the song so people could find it (i.e., potentially help Wilson Phillips sell more music).  Not HURTING THEM, but HELPING THEM.

At any rate, Soundcloud immediately pulls the track for copyright violation, apparently with no consideration of fair use at all.  They have a dispute process, but they make it so you risk losing your account if they don't like your explanation of the "four fair use factors."  Since I have a nice account going, I certainly did not want to take my chances, so this great piece of advice goes into the DMCA junkyard.

Don't want to read all this?  Listen to the Podcast!

Status of music "fair use" rights in the 9th Circuit

The 9th circuit is just one of 11 circuits in the United States.  Cases that arise here can be complicated.   The 9th Circuit, encompassing nine western states of the United States, including California, Arizona, Oregon, Washington and other states has played a significant role in shaping music fair use law in the United States. Several milestone cases have emerged from this jurisdiction, setting precedents that have influenced courts nationwide.

1. The "Pretty Woman" Bridge Sampling Case:

One notable case in the 9th Circuit involved the iconic song "Oh, Pretty Woman" by Roy Orbison, and the rap group 2 Live Crew's parody version of the song. In 1994, the court held that 2 Live Crew's use of a recognizable, albeit altered, version of the song's opening riff constituted fair use. This decision emphasized the transformative nature of the new work and its parody intent, marking a crucial victory for artists seeking to repurpose copyrighted content for creative expression.

2. The "Blurred Lines" Infringement Case:

Another significant case that captured global attention was the copyright infringement lawsuit involving the song "Blurred Lines" by Robin Thicke and Pharrell Williams. In 2015, the court ruled in favor of Marvin Gaye's estate (5.3 million dollar judgment), finding that "Blurred Lines" substantially copied elements of Gaye's song "Got to Give It Up." This decision sparked debates about the limits of fair use, as it seemed to prioritize the overall "feel" of a song rather than literal copying. This case highlighted the complexities involved in determining fair use in the context of music.  The case was affirmed on appeal.

3. The "Stairway to Heaven" Copyright Case:

In the widely-followed "Stairway to Heaven" copyright case, the 9th Circuit ruled in 2020 that Led Zeppelin did not infringe on the copyright of the song "Taurus" by the band Spirit. The court concluded that the two songs did not share enough similarities to establish infringement. This decision emphasized the importance of considering substantial similarity between compositions in determining fair use, giving weight to the musical elements and structure rather than general "feel" or style.

BOTTOM LINE:  The status of music fair use rights in the 9th Circuit illustrates an ongoing battle to strike a balance between protecting original works and fostering new creativity and new transformative works. While the 9th Circuit has many significant rulings, each case presents unique circumstances that must be individually analyzed using the four factors and applying legal precedent.

What happens when they take down your track?

Here is quick look at their fair use dispute process on Soundcloud when they takedown your track for music copyright alleged violations.

First you get notice that your video is down.  Then, you have a page that allows for a dispute process:

I clicked on "my creation but from other artists" since I included a short music clip in my post.  This is the page that comes up next.

From here, I clicked "some other reason" since I did not see any option to make a fair use claim.  Finally, this page popped up.

Then, they provide a list of INVALID reasons to challenge the takedown (but some are actually factors that support fair use findings), such as only using a small portion and not earning money. I credited the artist, and I think my use is fair.  At any rate, still not seeing any option to assert fair use rights, I clicked on "file a dispute here," and the following page pops up:

Finally, I had a form where it looks like I can assert why my non-commercial post should qualify as fair use.  But as you can see, if I am wrong Soundcloud reserves the right to terminate my account. In other words, if they do not have a copyright fair use lawyer on staff, and someone disagrees with me, I could lose my entire account.  This is where I stopped, not worth the risk right?  But, the world missed out on my motivational podcast that was merely giving props to Wilson Phillips and their amazing song "Hold On."

Fight for Fair Use Rights - it makes for a better culture when done right!!

Having robust copyright fair use rights is crucial for society for several reasons:

1. Encourages innovation and creativity: Fair use provides individuals with the freedom to use copyrighted materials for purposes such as criticism, commentary, news reporting, teaching, research, and parody without seeking permission from the copyright holders. This allows for the creation of new works, transformative adaptations, and the exploration of new ideas. By encouraging innovation and creativity, fair use contributes to the growth of art, literature, education, and technology.

2. Preserves freedom of expression: Fair use safeguards the right to freedom of expression and protects individuals' ability to engage in social, political, and cultural discourse. It allows people to use copyrighted materials to express their views, present alternative perspectives, or provide critical analysis on various topics. Limiting fair use rights could restrict the availability of diverse and impactful voices in society.

3. Promotes education and learning: Fair use allows educators, students, and researchers to utilize copyrighted materials in classrooms, libraries, and academic settings. It enables teachers to provide relevant, up-to-date, and engaging materials, facilitating effective teaching and learning experiences. It also enables researchers to quote, cite, and build upon existing knowledge to generate new insights and discoveries.

4. Facilitates access to information: Copyright fair use rights play a crucial role in ensuring public access to important information. It allows journalists and media outlets to report news and provide factual analysis using copyrighted materials. Fair use also enables the creation of archives, libraries, and online repositories, preserving historical records, cultural heritage, and knowledge for future generations.

5. Supports cultural preservation and diversity: Fair use facilitates the preservation and dissemination of cultural works. It enables the digitization, reproduction, and distribution of copyrighted materials to protect and promote cultural heritage. Fair use rights allow access to rare, out-of-print, or culturally valuable materials that might otherwise be inaccessible, ensuring their longevity and availability.

6. Balances the interests of creators and the public: Copyright fair use rights establish a balance between the rights of copyright holders and the needs of society. While copyright provides creators with exclusive rights to their creations, fair use ensures that these rights are not absolute. It allows for limited and reasonable use of copyrighted materials, preventing undue monopolies and fostering a fair and dynamic intellectual and creative environment.

Robust copyright fair use rights promote creativity, innovation, freedom of expression, education, information access, cultural preservation, and a balanced copyright system. These rights are essential for a flourishing and inclusive society.  In fact, this "right" (limitations on copyright) are set forth clearly under federal law at 17 U.S.C. 107.  In other words, it is a LEGAL RIGHT, yet if you are forced into court it becomes a defense the defendant must raise and prove.

The Four Fair Use Factors

Here is what the fair use law looks like.  There are certain per se rights (comment, criticism, etc.) - clearly it makes sense that I would play a short clip to comment on the song "Hold On" to allow others to hear a very short sample.  I believe this is supported by most of the factors above.  However, here are the four factors the courts would apply if I had moved forward to dispute, and the case went to court.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 

and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Analysis of the four fair use factors in my situation

FACTOR ONE:  In posting my short podcast clip on Soundcloud, I was using essentially in a non-commercial aspect.  I was not running an ad or anything.  It was an inspiration message I was trying to give (a "Life Hack" as I called it).  I believe this is in my favor.

FACTOR TWO:  The nature of the copyrighted work is MUSIC, which has a great deal of protection.  They win on this one.

FACTOR THREE:  How much did I use?  About 15 seconds of a four plus minute song.  One can debate this.

FACTOR FOUR:  I win this factor, there is no impact on their market for the original song.  Moreover, I was actually PIMPING OUT there song with full credit potentially increasing their business.  

So, being that I believe I have factor ONE and factor FOUR in my favor (these are considered the most important two factors), it should clearly be a fair use.

However, under the Soundcloud platform this looks like a risky proposition and simply not worth the risk of an account takedown.  Sorry culture, maybe next time.

Contact a Copyright Fair Use Law Firm

Since 2004, Vondran Legal® has handled a wide variety of copyright infringement cases from Strike 3 Holdings movie file-sharing, to photo and computer font infringement, software infringement with many of the major software vendors, architectural plans copyright cases, and DMCA and copyright disputes arising on Etsy, eBay, Apple, Google, YouTube, and other social media platforms.  We have appeared in over 500 federal court litigation cases making us one of the top copyright litigation firms in the United States.  Call us at (877) 276-5084 or fill out our contact form for more information.