[Dixielandjazz] Quoted passages in songs - Infringement?

[Stephen G Barbone]

A successful defense against copyright infringement is the doctrine of  
"fair use". Problem is only case law can be used as precedent. There  
is no clear definition of "fair use" in written laws. Parody qualifies.

The relevant Supreme Court case on parody is Campbell v. Acuff-Rose  
Music, Inc. It involved the song "Oh Pretty Women". 2 Live Crew, a rap  
group, wrote new lyrics to Roy Orbison/William Dees song. The  
publisher of the original song sued, because he didn't like the lyric.

The court said IN THIS CASE that since the rap song parodied the  
original song, it was protected by the fair use doctrine.

Quoting other songs during a jazz rendition of a particular song could  
be considered a parody. And thus would be considered "fair use" under  
the case precedent above.

Below is an analysis of the "amount & substantiality" of fair use.

The third factor analyzes the amount and substantiality of the copying  
in relation to the copyrighted work as a whole. The crucial  
determination is whether the quality and value of the material copied  
from the original copyrighted work is "reasonable" in relation to the  
purpose of copying. Regretfully, there is no black and white rule that  
sets forth an absolute ratio or quantity of words that may be used of  
the original work that would ensure a finding of fair use. Instead  
there have been circumstances where a court has found that the use of  
an entire work was fair use while under different circumstances the  
use of a small fraction of a work failed to qualify as a fair use.  
This factor not only evaluates the quantity that has been copied but  
also the quality and importance of the copied material. The courts  
when analyzing this factor evaluate whether the user of the original  
copyrighted material has taken any more of the original work than was  
necessary to achieve the purpose for which the material was copied  
from the original work.

Reality Check: Would you be sued for quoting 4, 8, 16, or 32 bars of  
Bourbon Street Parade (protected by copyright) during a 10 chorus  
rendition of the public domain Bill Bailey?  Probably not since you  
are parodying Bourbon St. Parade.

Could you be sued? Sure, you can be sued for anything these days.

Cheers,

Steve Barbone

www.myspace.com/barbonestreetjazzband