Q: Our college TV station recently covered auditions for our college's dance team. The student editor was unaware that the song playing in the background of the video was copyrighted when she created the video. The piece is edited with several cuts and you don’t ever hear a full song played. Can we air the piece with the background music even though we have not obtained explicit permission from the record company?
A: There is a concept in copyright law called “incidental use” that likely comes into play here. If you are able to demonstrate that your use of copyrighted material — in this case, the music playing in the background — was merely incidental, there is no copyright violation.
The difficulty comes in determining where the line between infringement and incidental use is drawn. Unfortunately, the factors that go into that are pretty subjective.
One of the biggest factors would be how much of the song can be heard? You say it's not continuous, that helps. If you are cutting away frequently so that you only pick up 10 seconds of the song at a time, for example, you are in better shape than if your cameras are simply running continuously and they capture the performance and song in its entirety.
Another factor is how clear the music is. If it's muffled and truly in the background, you're in a stronger position to argue incidental use than if your camera was parked next to the speaker — or worse, if your equipment was plugged into the audio system and the song is crystal clear.
You can do a bit more digging into incidental use to see how you fare. We found this lawyer's video pretty helpful (if a tad long-winded).
The other relevant defense is fair use. You don’t mention why the video was created. If you are using editorially appropriate sound/video bytes of the auditions to illustrate a bona fide news story or review of the event, you would have a strong fair use claim. On the other hand, if you essentially captured the entire performance and published it without a news peg, you'd have a difficult time arguing fair use.