Does use of copyrighted material - such as Aebersold
play-a-longs - constitute infringement if it is used for a
non-commercial purpose - e.g. to share clips with fellow
musicians for learning purposes and personal enjoyment?
Probably not.
The U.S. Code states:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be
considered shall include -
(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.
The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon
consideration of all the above factors
The above citation suggests that an individual using an
Aebersold backing for use in self-education, comments
from fellow musicians, etc., and not sold commercially or
affecting the marketplace for the music holding the
copyright, would not violate the copyright by the Fair Use
exception to exclusivity. One could record oneself playing
with an Aebersold play-a-long for the purpose to share
educationally with other musicians and be on reasonably
safe ground as far as falling within the fair use exception
to copyright exclusivity. A fair question might be: is your
action causing the copyright holder or owner of rights to
the copyright economic damage, or likely to? If not, then
being the subject of litigation appears slight, and in the
unlikely event of litigation, very defensible.
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