What Is Fair Use?
Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.
Factors in determining fair use. When reviewing fair use questions, courts primarily look for three factors:
- You did not take a substantial amount of the original work (say, ten seconds of a song versus 60 seconds).
- You transformed the material in some way (for instance, you added new base sounds to a melody).
- You did not cause significant financial harm to the copyright owner (perhaps you are using a bit of classical music in your heavy metal rock song, which appeals to a different market).
Do not believe the widespread myth that "less than two seconds is fair use." There is no "magic number" like this. Also, some courts apply a fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that
any musical sampling violated the sound recording copyright.
You can use the above arguments to defend yourself against a lawsuit for sampling without permission. The problem: You will not know for sure which way the judge will rule. And, most likely you will have to hire an attorney to represent you in court.