WWW FAQs: Can I play the first 30 or 60 seconds of a song on my site without paying a license fee?

2007-10-19: I am not a lawyer and cannot give legal advice. The following is my layman's opinion. If you have serious legal concerns, consult a lawyer.

Short answer: no. There is a persistent myth that playing the first 30 or 60 seconds of a song is always okay. This is not the case. Playing any portion of a song on your website requires a license. See my article how do I get the rights to play copyrighted music on my Internet radio station? for complete details.

"What if I lower the quality of the music?"

Reducing the quality of the audio, for instance by using a very low MP3 bitrate such as 16mbps, does not change the legal situation. It's true that a low-quality MP3 is a less credible threat to the saleability of the original music, and this might conceivably reduce the damage award you would owe. Then again, it might not. And by the time we're talking about the damages you owe, it's already crystal-clear that you should not be considering this.

Long answer: the "fair use" exception to copyright law does allow the reproduction of very short excerpts from a musical work. However, this is allowed only under very narrow circumstances such as:

In the context of a review of the song (music criticism).
News reporting about the song.
Academic scholarship about the song.
Parody (making fun of the song, another form of music criticism).

What all of these exceptions have in common is that they do not allow you to use the song to promote your own unrelated website and advance your own unrelated goals. They allow you to talk about the song, and educate people about it in an academic way. But they do not allow you to take advantage of the song for your own purposes, unless you review music or do music scholarship for a living.

To be clear, you cannot take a 30-second excerpt from a popular song and play it in the background to jazz up your personal or corporate website and call that "fair use." You can't use a five-second excerpt, either! There is no blanket exemption for samples of any length.

"What if I'm using the short excerpt to promote legitimate sales of the song?"

That is a good reason for the legitimate holder of the rights to work with you... so, work with them. Reach a legal agreement between your companies that permits you to use the samples. Don't wait to be sued.

If you do use a song in the context of a review or other legitimate "fair use" under copyright law, you still need to use a very short excerpt as compared to the full length of the song, and avoid any use that would have a negative impact on the market for the song. If your page is a viable alternative to buying a copy of the song, it's definitely not fair use.

Please note that even if you jump through all of the "fair use" hoops there is always a possibility that you will get sued anyway. If you decide to pursue fair use, take the matter seriously. I would personally recommend taking down the song excerpt if you are asked to do so by the copyright holder, unless you have deep pockets and strong motivations for fighting them in court.

In a nutshell: want to use a piece of music? Get the rights! Can't afford 'em? Broaden your search to include unsigned bands who may be enthusiastic about working with you.

For more information, see the United States Copyright Office fair use page.

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