At what point is using a song's instrumental considered fair use?

Question

Let's say someone want to make a song using the instrumental of Just the two of us by Grover Washington...

Maybe half the song is humorous about the bad and good parts of a relationship..but the other half is more serious would it then be considered parody and be subject to fair use under copyright law?

How would you advise this person to proceed if they were dead set on using the instrumental and trying to minimize the likelihood that they would get sued by the copyright owner?

Answer 1

How do you parody an instrumental?

Is your arrangement for the kazoo and the calliope withe whoopie cushion noises? Is it a marching band tune that you are scoring for the piccolo and the mouth harp for comedic effect?

Remember that the lyrics and the music are two independent works as well as a joint work and while it is relatively easy to parody the lyrics, and possible to parody both, it is much harder to parody the music on its own.

In any event, it seems that what you are talking about is satire, not parody. You are making fun of relationships: that’s satire. To be a parody, you have to be making fun of the song. Parody is fair use, satire isn’t.

In fact, when examining how copyright law protects parody the Supreme Court explained in Campbell v. Acuff-Rose Music, Inc., “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”

If your critique of relationships would be just as valid set to other music, you don’t have a fair use defence.

Note that what is protected is “criticism or comment” which can be a humorous parody but can also be serious. The guide is not if it’s funny, it’s if it criticises or comments on the original work.

Answer 2

Fair use is assessed using a statutory, four-factor test, codified at 17 USC § 107.

The factors to be assessed are:

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.

You ask:

At what point is using a song's instrumental considered fair use?

There is no objective cutoff point at which a person can be certain what they've copied would be defensible as fair use. Every circumstance is assessed case-by-case.

However, I will emphasize a few things:

• Every one of the statutory factors must be considered.
• In particular, the "amount and substantiality" factor must be considered in every fair-use analysis.
• No single factor is determinative.
• "Some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the 'heart'—of the work."
• The "amount and substantiality" factor "calls for thought not only about the quantity of the materials used, but about their quality and importance, too" (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 587).
• The "amount and substantiality" factor asks whether what was taken is "reasonable in relation to the purpose of the copying" (Campbell, 586).
• "The extent of permissible copying varies with the purpose and character of the use" (Campbell, 586).
• "There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use" (Sundeman v. the Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
• "There is ample precedent supporting a finding of fair use when the amount taken was necessary to accomplish the second work's transformative purpose" (Jeremy King, "Tiny, Tiny Copyright: An Examination of the Copyrightability of Sampler Instruments and Its Impact on Derivative Works" (2021) Columbia J. Law & Arts, citing Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009); Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (S.D.N.Y. 2014)).

From those premises one has to conclude that the point at which using only a song's instrument track would be considered fair use will not necessarily be at "exactly the same point as using the full version." There is clearly room for circumstances in which taking instrumentals only would be considered fair use but taking the complete track would not be considered fair use.

We cannot tell you where those points would be in the abstract.

Answer 3

At what point is using a song's instrumental considered fair use?

At exactly the same point as using the full version.

That said, only using the instrumental component of a song does not secure you any leeway whatsoever: the component is copyrighted to no lesser extent than the whole.