Legal Question in Intellectual Property in New York

Re: Melody/Harmony Fair-Use as Art Product?

It is likely that permission will need to be sought from the owner of the copyrighted melody/harmony. In event that the local art center will own the sound composition which you created, chances are that the center will want you to assure them that whatever materials you incorporated into your sound composition, you have the necessary rights and permissions to do so. From experience, depending on the reputation of the local art center and how you intend to incorporate the 10-second melody/harmony, the copyright owner may gladly license you the right to do so. Please feel free to contact me if you wish to discuss this further.

Re: Melody/Harmony Fair-Use as Art Product?

Copyright fair use is a quagmire. Fair use is only partially defined in statute; its full determination is based on a test that is really quite subjective. No definitive answer to a fair use question can be given on this board; it is just too complex an issue.

Feel free to contact me directly for a consultation on this matter if you wish.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

Re: Melody/Harmony Fair-Use as Art Product?

You raise a question that has only recently been considered by various federal courts. What you're talking about doing is 'sampling.' While you may have a fair use defense to copyright infringement for the use of the words, your fact pattern is too thin to be considered. If the art center is non-profit, if no charge is being assessed for access to the outside space, if the words you're using aren't the 'heart' of the copyrighted work, if your use is de minimis and/or transformative, then you can start considering a reasonable risk. What I advise all my clients is to not make a 'fair use' assessment if, upon receiving a cease and desist notice, they're going to avoid defending their claim anyway. Instead, approach the copyright owner, discuss the use and see if you can't come up with a fair and affordable license fee. Even with the help of an attorney, it will be cheaper in the end than going to all that effort, withdrawing your work in the face of a legal threat, suffering the embarassment with the art center, possibly breaching your agreement with the art center and, worst, losing out on future work with the art center. Good luck.