While standing together by staying apart, I find myself in the Theatre of the Absurd, washing fruit with hand soap, placing packages in “time out” to quarantine for 48 hours, and spending countless hours hunting endangered species – the rare and elusive roll of Charmin, the exotic box of Clorox wipes, and a tangential necessity: the rapidly disappearing can of diet cream soda. The relative unimportance of such minor inconveniences during one of the most trying times in recent history is not lost on me, and so home I sit, like most of us, attempting to find some semblance of life as usual by setting small goals to help my mind escape. My greatest escape pre-pandemic and present, is dance and yoga so I turn to my usual class instructors, many of whom have catapulted themselves into the world of technology to teach their classes on Zoom. As I now find my mornings filled with kick-ball-changes, lunges and downward dogs with my Zoom classmates, guided by my teachers’ playlists consisting of Lady Gaga, Katy Perry and Brittney Spears, inevitably the entertainment attorney in me invites a gnawing question that infiltrates my workout – “Is this even legal?!”
As an entertainment attorney, intuitively I know the answer – If you don’t own the copyright, you need permission to play the song, with few exceptions. As a dancer who loves fitness classes I am initially dismayed. But as an artist advocate I know that this is and must be the case.
Now, you may doth protest: How will anyone know? But the complex shall not get in the way of the right, and just as a policeman may not catch you speeding every time you speed, speeding, alas, is not legal. In that spirit, I respond to one of the most common protests heard at Ham Law, and dispel myths that have penetrated popular discourse. In short: Without permission for the following or the defense of Fair Use, just say no:
“I bought the song on iTunes.”
When a song is purchased on a digital music platform, the purchase gives permission to use the song in a specific manner, according to the license purchased, but does not purchase the copyright to the song to use in any way you may choose. And taking a step back, this all makes sense, right? Behind every song is a human: a human writing the lyrics, organizing musicians, paying for studio time, recording, struggling to make ends meet – simply put, behind every song is the livelihood of the song owner. A baker bakes bread, a postal worker delivers, and a retailer sells clothes, and so a songwriter writes songs. Just as it is not legal to steal bread from a baker and clothing from a retailer, so it is also not legal to steal songs from a songwriter.
“I play the songs at home for my family or parties.”
The key here is whether the performance is considered a public performance. If music is played in a private home for a small number of people, and not tied to any sort of monetary gain, the license should cover such performance. However, trouble arises once the songs are played for the “public,” or are earning revenue associated with playing that song.
“I wrote a Copyright Disclaimer.”
It is a mistake to believe a song may be used so long as the artist is given credit, or a disclaimer like “No Copyright Intended” accompanies the song. Such a disclaimer is about as effective as leaving a note on a car that reads “No Parking Intended” in a No Parking Zone.
“I gave credit to the song owner.”
Aside from the fact that credit will not protect against a copyright infringement claim, I’m inclined to ask – how do you know who the owner is? Aside from the fact that most people mistakenly believe the performer of the song is the owner when giving credit (which is often not the case) – just giving credit alone is not permissible as mentioned above, outside some other agreement with the owner. Acknowledging the owner or performer of a song is always great, it just doesn’t make stealing legal. Artists cannot make a living or put food on the table based on “credit” or the more infamous, “exposure.”
“I’m a Group Fitness instructor, I play my music for classes at the gym, so why can’t I play the same music in my Zoom class?”
If a fitness center is using music legally, it has a license to do so through different organizations that offer a “blanket license” for a fee, which covers a library of songs. In the US, that means they are paying BMI, ASCAP and/or SESAC. And no, that blanket license from the fitness center does not extend to instructors outside the gym. Blanket licenses are specific in use, including location and type of use. So where it may cover the gym, it may not cover Zoom.
“What if I teach the class for free, or for a donation?”
Generally speaking, it does not matter whether money is made off the song performance, it is still not your song to use. However, not making a profit combined with the educational aspect of fitness classes may help your case under a defense of Fair Use, a legal term that allows some very specific uses of songs without permission. The problem with relying on that defense, however, is that it is a defense, meaning it is used only after legal trouble arises. This question invites us down the path of Fair Use, which can be a lengthy one. For our purposes, I’ll cut to the chase – “Fair use” allows limited use of a copyrighted work without the copyright holder’s permission to be used for educational purposes, news reporting, and other informational context. The question is: Is fitness considered educational, and is that education considered non-commercial? Do you mention your fitness center or company during class or in your Zoom meeting email to attendees? Will the court consider your free class promotional use for yourself, or for the gym? There are many risk factors left up in the air because in essence Fair Use was intended to be up in the air, and thus decided on a case-by-case basis in the courtroom. The bottom line is, to relay on Fair Use as a defense, careful consideration should be directed toward evaluating whether it is a risk you are willing to take.
Eventually the pandemic madness will settle, the handshakes will return, and though we may never be the same we may be the wiser. And perhaps, if we don’t screw this up too badly, we will be the better for it, in the end.
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