How do fair dealing and public domain apply to music used in a production?

Byron Pascoe: It’s a general misconception that if only a few seconds of a song or stock footage clip or anything is used, that it’s OK to use; that’s just not accurate. I hear a lot, “Well, if I only use 10 seconds of this thing, is it OK?” And my answer always is no. There’s no “10 second rule”; it’s not like a sandwich fell on the floor or that kind of thing.

Fair dealing (Canada) and music in film productions

So, if there is ANY amount of time being used from an existing song, you have to get permission. With the concept of fair dealing in Canada, there’s a process whereby there are some things that you can use (arguably) that is copyright infringement but because of the fair dealing rules, you’re allowed to do it. Within music, parody is one of the items in which you can try to rely on fair dealing. The thing about fair dealing in Canada (and fair use in the US) is that, sure, it’s part of the Copyright Act, it’s an exemption to copyright infringement, but really, the only way it can be determined definitively that it’s fair dealing in Canada, is if a judge says that it is. And it’s just not practical or financially feasible in most situations to go through the court system to have a judge determine that something is fair dealing.

When people ask me, “Is this fair dealing or fair use?”, it always depends on the situation but preferably, you would not rely on fair dealing/fair use at all. You don’t want to have to deal with a claim and have to defend it and go to court and make the claim that it’s fair dealing. Fair dealing and fair use are key aspects of the copyright regime in general but it’s not the first thing that you should rely on when putting music into your film. You should be getting permission.

Whether music is in the background or at the forefront or is the theme song of a TV show or in the credits, it does not change the fact that you need permission. You’re probably going to pay more money if the song is a theme song vs. in the background but it doesn’t matter if it’s one second or 1,000 seconds or in the background or forefront; you need permission.

Public domain and music in film productions

The concept of public domain is that after a certain amount of time after an author’s death, the music goes into the public domain, meaning that people in the public can use it without permission. So, if I write a song today, if a producer wants to use it, they need permission from me. But if I had died 100 years ago, you don’t need permission. Now the question is, when does music go into the public domain? Currently, in Canada, it’s 70 years after January 1^st the year after the author has died. I work a lot in the area of kids’ animation productions and in those situations, you have people composing music that may be based on music in the public domain. Part of my role is to establish whether or not the music for which someone is basing their new song on is in the public domain. If a composition is in the public domain, then if you’re creating a new version of it, you don’t need permission from anybody. If a song may or may not be in the public domain, you need to research whether or not it’s in the public domain, and if it’s not, you need to get permission from whoever controls that composition.

There’s a lot of music in the public domain and people who have made adaptations and arrangements of music in the public domain, and if you as a producer want to use a composition that is an arrangement of something in the public domain, you need permission from whoever arranged that public domain work. If your composer wants to create a score that’s allegedly based on a public domain work, then it’s important to clarify whether it’s really in the public domain. There are different rules about public domain in different parts of the world; Canada and the US have a similar structure now.

A lot of holiday and Christmas songs are in the public domain; that’s kind of where public domain comes up a lot in productions (to know whether a certain jingle is in the public domain or not). Public domain is an important part of the music ecosystem with film productions and it’s important to clarify that in Canada, the US and beyond, that something is actually in the public domain.

Byron Pascoe is an entertainment lawyer and partner at Edwards Creative Law

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Related:

• E&O considerations for US-based vs. Canada-based producers
• Who can give consent to have music in a film?
• Fair use and E&O insurance for filmmakers
• Producer’s E&O clearance procedures
• YouTube: Errors and omissions insurance (E&O) – Byron Pascoe

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