Can I use 5 seconds of a copyrighted song?

Using even a short segment of a copyrighted song without permission can put you at risk of a copyright infringement claim. However, there are some cases where using a brief clip may qualify as fair use. Here is an overview of the rules and risks of using short song clips.

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What is Considered a Short Clip?

There is no definitive rule for what constitutes a “short” clip, but most experts agree that using 5 seconds or less of a song is generally considered brief. The shorter the clip, the more likely it will qualify as fair use (more on fair use below). However, even 2-3 seconds may be pushing it depending on the context.

Does Fair Use Apply to Short Clips?

Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as commentary, criticism, news reporting, teaching, and research. There are four main factors courts consider in determining if a use qualifies as fair:

The purpose and character of the use – using a clip for nonprofit or educational reasons leans in favor of fair use, while using it commercially leans against.
The nature of the copyrighted work – Using a clip from a highly creative work like music weighs against fair use.

The amount and substantiality used – The less you use, the better case for fair use.
The effect on the market – If your use harms the market/potential market for the original work, it argues against fair use.

So while using a very short clip favors fair use under factor 3, the other factors also come into play. In general, nonprofit/educational uses are more likely to be considered fair than commercial uses of short clips.

Examples of Fair Use of Short Clips

Here are some examples where a brief song clip may qualify as fair use:

A professor using a 5-second clip in a classroom lecture on musical styles.
A movie review using a 2-second clip of a song to critique its placement in a film.

A news report using a clip of a popular song to accompany a story on the artist.
A documentary film quoting lyrics from a song to analyze the cultural impact.

In these examples, the clip is being used for commentary, criticism, teaching, or news reporting in a nonprofit context, which strengthens the fair use case.

Examples that May Not Qualify as Fair Use

On the other hand, the following uses of short clips are less likely to be considered fair:

A commercial using a 5-second clip of a popular song.
Including a 3-second clip in a YouTube video without context.

Looping a 2-second vocal hook over and over in a song.
Using a brief clip from a song as background music on a commercial website.

Here the clips are being used commercially or decoratively without adding new meaning, which weakens the fair use case.

Obtaining Licenses for Short Clips

Rather than relying on fair use, many media creators choose to license brief song clips just to be safe. Synchronization (sync) licenses allow you to use both the recording and composition in timed relation to visuals. Some ways to obtain sync licenses include:

Directly contacting the artist/label for permission.
Using production music libraries that offer clips pre-cleared for licensing.

Obtaining a blanket sync license through an organization like ASCAP or BMI.

Licensing protects you from infringement claims, but can get expensive. Fees vary based on the prominence of the song and context of use, but expect to pay $100+ even for a brief clip.

The Risks of Using Unlicensed Clips

If you use an unlicensed clip without qualifying for fair use, the copyright owner can seek the following remedies:

Damages – Actual damages plus any profits you earned attributable to the infringement.
Injunction – A court order to remove the infringing content.
Statutory damages – $750 to $30,000 per infringement if the rights holder opts for this instead of actual damages.

Attorney fees – If they sue, you may have to pay their legal costs if you lose.

You also face having your video content taken down through DMCA notices. The consequences can be severe, especially for commercial users.

Best Practices

To minimize risk of an infringement claim when using short clips:

Keep clips under 5 seconds when possible.
Only use portions that you need for commentary/criticism.
Attribute the song and artist properly.

Use clips sparingly rather than repeating segments.
Avoid using clips decoratively or purely for entertainment.
Add commentary and context so use is more transformative.

Use lesser known songs or those no longer protected by copyright if possible.

Being mindful of context, amount taken, and purpose can help strengthen your fair use case. But you still may want to consult an attorney if using commercially or relying heavily on unlicensed content.

Conclusion

Under the fair use doctrine, brief clips of music may be used without licensing in certain academic, commentary, and news contexts. However, commercial uses are riskier and often require sync licenses. Limit clips to under 5 seconds, only use necessary portions, provide context, and avoid repetitive use to minimize infringement risk. But when in doubt, seek legal advice or obtain a sync license, as unauthorized sampling can lead to substantial damages. Be especially cautious when using popular songs where labels actively police usage rights.