Wednesday, March 19, 2014

Can Mechanical Violin Play Billie Jean?

Dear Rich: I'm making a short documentary about a guy who invented a machine that plays a real life violin. It's a kinetic sculpture and it can play anything that you can send to a midi file. I want to make the film appealing to all generations and I was hoping I could have the violin play Billie Jean or Livin' on a Prayer. The kinetic sculpture can only play one note at a time. I plan on selling the film to TV or news websites. My questions: 1. Would having the violin play a short (10 second) section of the melody be considered copyright infringement? 2. What about having the violin play different parts of a song (bass, harmony, melody) and editing them together to make the song sound more full. Would that also violate copyright? I ask because the film could be seen as educational because the inventor explains some of the engineering that it took to build the kinetic sculpture. I also wonder if this is falls under the "transformative" clause. We're fans of mechanical music and used to love listening to it at the Museum Mechanique until it moved from its "cramped, noisy, damp and dingy" Cliff House basement location to Fisherman's Wharf. (BTW, the compulsory music license owes its existence to mechanical music.)
Right, you had a question. Your use of Billie Jean or Livin' on a Prayer by a mechanical violin, is likely to be considered a fair use because you are using such a short segment (10 seconds). Here are other examples of music fair use cases. We're not sure your use is transformative. Are you commenting on, or offering new insight into the songs? If you are, that would help your argument. But we must we reiterate our mantra - fair use is a defense and is a matter ultimately determined by the courts. Also, it should not make much difference whether you use just the melody or the full arrangement. 

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