AMEN APPROPRIATION: LEGAL AND ETHICAL ISSUES (AUDIO USAGE)

As well as using or appropriating moving video imagery from music videos the main crux of the Amen Brother piece is obviously the music. This is integral and the lynchpin of the piece as whilst the visuals are important the sound is the priority. I have a basic knowledge and understanding of music copyright and how to get clearance from my TV days but it is usually such a legal minefield as well as being costly. It involved going through PRS (Performing Rights Society) and stating length, usage, medium, context etc and they will then act as intermediaries for copyright holders and calculate the costs to use the music. To avoid this recently used rights free un-copyrighted music or worked with composers to write original music for my work to avoid these issues.

However using the copyrighted music of others is the basis for this whole piece and would be very time consuming and potentially costly as I mentioned earlier. The aim is to use music from well known artists that the audience may be familiar with and to get the to re-listen to it in a different context so will be necessary. To this end I needed to explore and research the legality surrounding the use of music much the same way as I had to with using moving image works and hopefully find something similar to fair usage in operation. The whole idea of the piece and appropriation is also in the irony of musical artists and acts appropriating (sampling) the Amen Break and paying no royalties. So by my paying no royalties myself to use their music and giving G.C.Coleman and the Meters the full credit and acknowledgement they deserve this is appropriation gone almost full circle.

From research it appears that the use of Fair Usage does also apply to music and is very similar to that of moving images. Whilst my work will only initially be screened within an educational context to tutors and peers in case of what may happen later or where it may be screened or exhibited I want to try and get it right from the start. I am currently looking at creating a multi screen installation piece but this may change into an experimental broadcast mini documentary so I want to be safe.

The UK Copyright Service seemed to be the people who oversaw the use of music so I researched and read around their guidelines (Fact sheet P-27) and the most poignant points I have outlined below.

Duration of copyright The 1988 Copyright, Designs and Patents Act states the duration of copyright as;

For literary, dramatic, musical or artistic works 
70 years from the end of the calendar year in which the last remaining author of the work dies. If the author is unknown, copyright will last for 70 years from end of the calendar year in which the work was created, although if it is made available to the public during that time, (by publication, authorised performance, broadcast, exhibition, etc.), then the duration will be 70 years from the end of the year that the work was first made available.

Sound Recordings and broadcasts
50 years from the end of the calendar year in which the work was created, or, if the work is released within that time: 50 years from the end of the calendar year in which the work was first released.

Films
70 years from the end of the calendar year in which the last principal director, author or composer dies. If the work is of unknown authorship: 70 years from end of the calendar year of creation, or if made available to the public in that time, 70 years from the end of the year the film was first made available.

From the above it is clear that as most of the material I will be using is from the last 25-30 years I will need to adhere to copyright as none of it will be out of copyright.

Fair Dealing
iii: Criticism or Review
Quoting parts of a work for the purpose of criticism or review is permitted provided that: 

• The work has been made available to the public. 
• The source of the material is acknowledged. 
• The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification). 
• The amount of the material quoted is no more than is necessary for the purpose of the review.

I feel that as my work is critiquing the use of the Amen Break itself and in the work of others and whilst not explicitly inciting discussion or assessment will certainly implicitly doing this in the minds of the audience. The work has all been made available to the public and I will make sure I do not use too much of it and acknowledge it in some way as credits or notes if used as an installation. This will be the predominant area I see my work operating in and the clause for using it. Other areas that the work may fall under are i: Research and Private Study and also ii: Instruction or Examination but the section on Criticism or review is the most applicable to my work.

Fair Use Under Copyright Law And Its Application
The following also need to be taken into consideration.

• The purpose and character of your use (this is sometimes called the “transformative factor”)
• The nature of the copyrighted work (e.g., is the work highly creative fiction warranting broader protection, or is it highly factual warranting narrower protection?)
• The amount and substantiality of the portion taken, (as compared both to the underlying work and the work in which the copying is used)
• The effect of the use upon the potential market (e.g., did the copyrighted work lose market share or potential market share?). 

In addition, some commentators refer to a “fifth fair use factor” which hinges on good faith -- whether your conduct might be considered “morally offensive,”

I feel my work will transformative as it is likely to be a collage made from lots of sound clips combined to create another meaning. Whilst the work is creative it is in the public arena already and is really promotional material and an advert for the song and the band so by using it I do not feel I will I will be effecting its potential market share and may possibly even increase attention and sales of the original songs. The length of the copyrighted work used will obviously be kept to a minimum and the amount you can use is an issue and this is a very inexact science and they give the following guidance:

How much of a work can I use under fair dealing?
There is no simple formula or percentage that can be applied. You may have seen figures like ‘up to 10%’ or ‘no more than 400 words’ quoted in some publications, but such figures are at best a rough guide and can be misleading. What is acceptable will vary from one work to another. In cases that have come to trial what is clear is that it is the perceived importance of the copied content rather than simply the quantity that counts. Judges hearing such cases often have to make an objective decision on whether the use is justified or excessive.

From this and the 10% rough guidance the shorter the better. If a song is 4 minutes for example that would be 240 seconds so would be about 24 seconds of the song being able to be used. From research into music use in podcasts though the rule of thumb, not essentially the law but what has been established as "good practice" is that you cannot use more than 30 seconds of uninterrupted music. As this will be about the length of the sections of the tracks I aim to use and I envisage them blending into one another I feel I am on safe ground.

There is more information on this at Creative Commons and their Podcasting legal guide.
https://wiki.creativecommons.org/wiki/Podcasting_Legal_Guide


For the full details on copyright and adhering to the law for reference the UK Copyright Service outlines and guidance can be found here.
https://www.copyrightservice.co.uk/copyright/p27_work_of_others#fair_dealing

Their advice on fair usage is below.

What is fair use?
In copyright law, there is a concept of fair use, also known as; free use, fair dealing, or fair practice. Fair use sets out certain actions that may be carried out, but would not normally be regarded as an infringement of the work.

The idea behind this is that if copyright laws are too restrictive, it may stifle free speech, news reporting, or result in disproportionate penalties for inconsequential or accidental inclusion.

What does fair use allow?
Under fair use rules, it may be possible to use quotations or excerpts, where the work has been made available to the public, (i.e. published). Provided that:

• The use is deemed acceptable under the terms of fair dealing. 
• That the quoted material is justified, and no more than is necessary is included. 
• That the source of the quoted material is mentioned, along with the name of the author.

Typical free uses of work include:

• Inclusion for the purpose of news reporting. 
• Incidental inclusion. 
• National laws typically allow limited private and educational use.

What is incidental inclusion?
This is where part of a work is unintentionally included. A typical examples of this would be a case where holiday movie inadvertently captured part of a copyright work, such as some background music, or a poster that just happened to on a wall in the background.

Points to keep in mind...
The actual specifics of what is acceptable will be governed by national laws, and although broadly similar, actual provision will vary from country to country. Cases dealing with fair dealing can be complex, as decisions are based on individual circumstances and judgements. This can be a very difficult area of copyright law. To avoid problems, if you are in any doubt, you are advised to always get the permission of the owner, prior to use. UK fair dealing legislation For specific details on fair dealing under UK law please refer to our factsheet P-27: Using the work of others.