Fair Use and Non-Commercial Use

An acquaintance from a professional media association asked me if it was permissible to use approximately 10% of a song for a non-commercial video without obtaining a license. Here’s my response to that question.

Non-commercial is a broad term.  Is your video to be used for educational purposes?

There may be such a 10% rule that is part of the educational fair use guidelines – which are explained in Copyright Office Circular 21 (which you can find at www.copyright.gov ).  These are guidelines (representing a consensus of educators and content owners) only – and not law – however, courts do recognize and apply the guidelines in copyright case.

The Technology, Education & Copyright Harmonization Act of 2002 (TEACH Act) provides broad allowances for the fair use of music – but only for governmental bodies or accredited nonprofit educational institution.  The TEACH Act has a number of other eligibility requirements. The Copyright Office website should also have information on the TEACH Act.  Both the educational guidelines and the TEACH Act are designed to facilitate classroom and long distance instruction.  Neither is designed to be used for products that will be distributed. 

More generally, whether or not a use of a song or sound recording qualifies as a fair use depends on the circumstances and on a number of factors such as how much of the work is used and for what purposes it is used.  Using 10% or less of the work does not guarantee that your use is a fair use. However, your use is more likely to be viewed as a fair use (i) if you use less – rather than more – of the copyrighted material and (ii) if your use is non-commercial.