Fair use is a complicated issue. The distinction between copyright infringement and fair use is seemingly razor thin. In 1998, the United States government passed the Digital Millenium Copyright Act, laying out the penalties for copyright infringement. American users of the internet are expected to abide by this law, and in theory it makes sense. Things that are copyrighted are protected from unauthorized use, and a violation of a copyright will result in a takedown notice from the federal government. Copyright holders absolutely have the right to protect their works from unlawful or unauthorized use, but for the humble music blogger, how do you even know if you are infringing?
It is a fair generalization to say that most independent music bloggers – independent meaning those who aren’t writing for AOL or Gawker Media or receive a paycheck for their work – are writing about a subject they are passionate about. It doesn’t make much sense to run a pop music fansite if you’re neither getting paid nor passionate about the subject. My blog, for example, is about the music I love and the artists that I listen to. Ultimately the intention of my blog is to raise awareness for the smaller bands that I enjoy and to connect with other people who have the same interest. But how do you write about a topic you enjoy and keep it interesting with media such as pictures, audio or video, without infringing on artist’s copyrights?
The problem is, it is extremely hard to determine what you can and can not use for your blog without being some overpaid tv lawyer. Offering a free download of music that you do not own? I’m sure there are children today that know that this is not legal. Using an banner image of a band you find on the “press” section of their website? This is probably fine, as they are likely encouraging sharing. Using google image search for album art and posting that image to your blog? Now the rules get tricky. This very well could fall under the fair use right, as the artist or record label might have put that image on the internet with the intention of sharing or promotion. But unless you ask the content creator, you really don’t know if it’s ok. Of course, if you were to do that, it is the record label or artist’s prerogative to issue you a takedown notice or even make it a legal matter.
So what’s the answer? Should you limit your music reviews to old traditional folk songs that are now public domain? I doubt many readers would want to hear your thoughts on “Amazing Grace,” but crazier things have happened. On my blog, I have been trying my best to avoid any sort of grey area, but especially with the type of music I have been writing about it’s hard to find the line. If a band sends out a press release about their new album, they probably want that information shared with as many people as possible. But, you really don’t know unless you ask.
Naturally I do not link to illegal downloads nor offer them, but I do link to places where the reader can legitimately listen to the artists. For example, I try to include a link that launches the legal Spotify application or a Youtube link. Obviously record labels have to opt-in to Spotify, and Youtube is good at taking down any copyright infringement that is reported. This way, it is up to those hosts to deal with the legal side of things. If the label wants that Youtube video taken down, the link that says “here” on my website won’t connect to anything. That’s it. My blog is not professional, in any sense of the word, and I don’t think I’ll find my way on anyone’s press release list anytime soon, but it could happen. Until that day, I, like many of my fellow bloggers, will continue to try to avoid stepping over that line.
such sad, shiny things they are