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What You Need to Know

Digital technologies have made the copying of music and art incredibly easy.  This has led to widespread illegal copyright violations, but it has also led to creative repurposing of art to create new art.  Any artist with a home computer can now make a perfect replica of another artist’s work, modify it, and insert it into a new song or painting.  Some artists and scholars think that this development is terrific because it allows for enhanced creativity and greater exposure to the original work.  Some artists and industry representatives think that this development is troubling because artists may not be compensated for their work, reducing their ability to earn a living and their incentive to produce new work.

Sampling and appropriation of copyrighted work always brings the risk of an infringement suit, but there are still some things you should keep in mind to increase the chance that your copying will be considered fair use.

Get a License, or Utilize the Public Domain or Creative Commons, When It’s Feasible

A license is a powerful defense against copyright infringement.  Copyright owners may refuse to give you a license if your work parodies or criticizes theirs, but this doesn’t necessarily mean that you can’t use their work for your art; remember that parodies and criticism are likelier to be protected under the fair-use test even though you may have to do battle with the copyright owner’s lawyers.  The public domain and Creative Commons licenses make your work even easier if you can find the image or audio you need from them.

Consider Whether Your Work Might Be Fair Use

Fair use is complicated, but in general the less you re-use of a particular work and the more you transform it into something new, the more likely you are to succeed.

Remember There Are Two Copyrights Over Sound Recordings

The typical sound recording is protected by both a copyright over the composition (which the songwriter often keeps) and a composition over the studio recording (which is often held by a record label or license clearinghouse).  To use the recording, youl usually need a license from both.  If you cannot obtain a license to the studio recording, you may be able to obtain a license to use the composition to make your own recording.

You Can Submit a “Put-Back” Notice if Your Work Is Taken Down

Even if a copyright owner requests that your work be taken down under the DMCA, you have a right to provide a counter notification requesting that it go back up. Read more about the process in The Basics section.