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Question: I’m working on a short film that was inspired by a song. I’m not including the song in the film, but some of the lines of dialogue are the same as some of the song lyrics. Do I need to seek permission to use a song as the inspiration for my film? It’s a no-budget short being made for the love of the art—not to make any money. What legal issues could come into play?
Answer: This a classic question of “fair use” under copyright law. Although nothing is certain when applying the subjective standard of fair use, the invocation of a few lines of lyrics in a short film, where those lyrics are artistically relevant to the work, would most likely be permissible.
The first step in understanding this application of the fair use doctrine is to understand, at least superficially, how copyright law affects the use of a song or sound recording in an audiovisual work. As most artists know, copyright protection attaches the moment that an original work is fixed in a tangible medium, regardless of whether the work is registered with the U.S. Copyright Office. Thus, the moment a screenplay is written or a song is recorded, the work is protected by copyright.
With recorded music, there are two distinct copyrights. The underlying song, including the chord progression and lyrics, is protected by a “composition” copyright. The recording of that song is protected by a separate “sound recording” copyright. Those two copyrights may be owned by the same person or entity, or they may not.
Barring an exception under copyright law, the use of a sound recording and/or composition in a film requires a license from the owner (or owners) of the copyrights. Thus, for example, for the film Donnie Darko to feature a slow, stylized version of Tears For Fears’ “Mad World,” a license to the underlying composition—referred to as a “synch license”—would be required. (Whether or not Gary Jules and Michael Andrews’s brilliant version of the song further required a license to make a “derivative work” is a separate issue.) Had the producers of Donnie Darko desired to use the original version of “Mad World,” an additional license for the sound recording by Tears For Fears would have been required.
When licensing a musical composition for the purposes of recording a “cover,” the artist may obtain a “compulsory” or “mechanical” license that cannot be refused by the copyright owner (assuming certain requirements are met). Conversely, to incorporate a musical composition or sound recording into an audiovisual work like a film, a synch license, subject to the discretion of the copyright owner, is required. This may seem unfairly stifling at first blush, but consider the alternative: Without the requirement of a discretionary synch license, you could find all of your favorite Radiohead songs, re-recorded by Yanni, as fodder for TV commercials hocking household products.
The wholesale use of lyrics from a song in a film would generally require a synch license to the composition. Here, however, the moviemaker proposes to use only some lines—“some” presumably meaning a few. Further, the moviemaker appears to propose using the lyrics in a manner that is relevant to the subject and story of the film. With the reminder that there are few “sure things” in law, this would likely be deemed a fair use of the song that does not require licensing.
The fair use doctrine is codified in the Copyright Act at 17 U.S.C. § 107, providing that the “fair use” of a work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement. The Act sets forth several factors to consider, including the purpose and character of the work, the amount of use, and the effect upon the market for the copyrighted work. The case law has distilled these factors down into two primary inquiries: Is the use for “commercial” purposes, and is it “transformative?” Thus, if a song is used for pure commercial purposes, such as in a television commercial promoting the sale of a product, that is presumably not a fair use. Although most films have the goal of turning a profit, the case law tends not to treat them as pure commercial speech—providing them more leeway in the fair use analysis—even with major studio releases that have profit as their primary goal. The fact that the film here is a low-budget film, with profit being a secondary concern, weighs even further in the moviemaker’s favor.
Most important is the “transformative” nature of the use. Courts look to see whether the use of a copyrighted work “adds something new, with a further purpose or different character, altering the first new expression, meaning, or message.” Lennon v. Premise Media Corp., 556 F.Supp.2d 310, 322 (S.D.N.Y. 2008). This definition may sound as impenetrable as the term itself, and copyright lawyers, judges, and professors frequently disagree in applying this subjective standard. Here, where the lyrics to a song are being used as dialogue, a court would likely find fair use if there is, what I call, an “artistic relevance” to the use of the lyrics. That is, if the song is relevant to the subject matter of the film, if it motivates the plot or protagonist, and if some of the lyrics are woven into the dialogue in a way that provides further expression or perhaps fuels the story, that sounds like fair use. On the other hand, if the lyrics are used gratuitously—plagiarized in the film not because of any pertinence to the story but rather because the author desires simply to capitalize on the songwriter’s creative writing—that sounds like infringement.
I recommend reading the aforementioned opinion in Lennon v. Premise Media, in which a New York court found that the unauthorized use of 15 seconds of John Lennon’s recording of “Imagine” constituted fair use because of how the song and lyrics were woven together into a documentary about science and religion. Some (including myself) might question the result in that case, but the opinion at least offers additional insight into what I describe as “artistic relevance” and how that informs the fair use analysis.
Gregory Korn is a Partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in the areas of entertainment and intellectual property litigation. He has represented actors, musicians, and production companies in a variety of contract, trademark, and copyright matters. Korn has also litigated numerous real estate and trust matters, including the successful representation of a trustor in a series of appeals before the Ninth Circuit Court of Appeals and California Court of Appeal. In 2007, Korn was named a “2007 Southern California Rising Star” by the publishers of Los Angeles Magazine. Korn is a graduate of the University of California, San Diego (B.A. 1996) and the UCLA School of Law, Order of the Coif, (J.D. 1999). Prior to practicing, Korn clerked for the Honorable Stephen V. Wilson, United States District Judge for the Central District of California.