Question about what I can sing?

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Question about what I can sing?

Post by Tallymarks »


I'm starting a little side hustle using Fiverr. I'm an opera singer, and my family and friends think it's hilarious to give me random lines to sing operatically. Some have paid me to send them recordings of myself singing funny phrases.

My question is regarding three main subjects. Knowing that I plan to sing the words to music that is already out of copyright, mainly classical music...can I sing:
Lines from movies?
Slogans or jingles, like the McDonald's jingle?
Songs that already exist, for example, operatically sing a Weird Al song?

I'm planning to ask $10 per recording if that's relevant. I would truly appreciate any advice! Thank you for reading!
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Re: Question about what I can sing?

Post by AndyJ »

Hi Tallymarks and welcome to the forum,

Taking you last bit first, I am assuming that since you mention dollars you are intending to do this in the USA. The rest of this answer is based on that assumption. If you live somewhere else the answer may be slightly different so please let me know if I have that wrong. As you can tell by my spelling of 'favour' and 'dialogue' below, I am based in the UK.

Irrespective of whether it was created to be sung, what you would be doing is performing the work. This is something that normally requires the permission of the copyright owner, assuming that the work itself is subject to copyright. This requirement is set out in § 106 (4) of the US Copyright Act 1976.

So the first issue is whether the work is subject to copyright. All works need to meet the basic level of originality to gain copyright protection. I think we can assume that the sorts of works you want to sing will meet that level of creativity. If you wanted to sing extracts from the phone book then this might not be the case as the content of phone books have been found to lack any creativity worthy of copyright. (see Feist v Rural Telephone).

The next issue is when the work was created. If it was created and published prior to 1928 then it will no longer be in copyright in the USA. For anything created between 1 Jan 1928 and today it's best to assume that copyright applies unless you have good evidence to the contrary. The law covering the period 1928 to 1963 is complicated due to the requirement for works to be registered in order to gain copyright, and many creators failed to do this or failed to renew the registration after 28 years had elapsed. So from this you can see that virtually all of the classical music you might use is out of copyright. But as far as lyrics go, the examples you mention are all likely to be subject to copyright. The next step is to see if the fair use doctrine would allow you to perform a work despite it being covered by copyright.

The fair use doctrine is set out in § 107 of the Copyright Act. A court will determine how the new work (ie your performance) measures up against the 4 factors outlined in section 107. These are
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This is something of a balancing act. If two or more factors go in your favour, then generally speaking your performance will be seen as fair use, unless the judge is being particularly cranky (it happens). So for example if you choose something which was not intended to be sung, such as a line from a movie, then you are off to a good start as your use, judged against factor 2, will be seen as transformative and also not in competition, economically speaking (factor 4), with the original movie script. However an Al Weird song is intended to be sung and so it will come down to whether your rendition in an operatic style is sufficiently different to count as transformative; on factor 4 the two works are in competition, so you may lose on this point. Although section 107 does not implicitly include it in the factors to be evaluated, the Act as a whole does provide for an element of parody or pastiche and so this may just swing factor 2 in your favour. In cases where you will be singing the complete work (jingles for example) the third factor will go against you, but singing a few lines from a movie script will tend to go in your favour on this factor. Since you intend to charge for your songs, factors one and four will need to be evaluated in virtually all cases. Again there will be nuances. A jingle does not have any separate economic value in the way that an Al Weird song does, so on factors 2 and 4 you may score better with jingles.

As you can appreciate, this is not a black and white issue. The law and its application is more than a little subjective, and on top of that you have to consider whether the particular copyright owner will care enough about your singing to do anything about it. I doubt if a major Hollywood studio is going to be upset about a couple of lines of dialogue, but using a jingle which may also be a registered trademark, might be a more sensitive area. Big corporations are protective of their intellectual property and want to avoid any dilution of their brand identity, so you have use your judgement in deciding what is and isn't fair game.

I hope this helps.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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