Briefing

In order to provide cell phone users with a 30-second song clip they can listen to before purchasing a ringtone, AT&T sought a public performance license from the American Society of Composers, Authors and Publishers ("ASCAP") for a number of the songs used in its previews. After AT&T and ASCAP were unable to settle on a price, an action was brought in a New York District Court in which AT&T argued that its use of the song clips as a preview was a fair use that should not require the payment of a license fee. The court disagreed, primarily because the previews did not change the purpose or character of the sound recordings. Although the previews were shortened versions of the songs, the music segments used in the previews were exact copies of the copyrighted sound recordings. The court found that even though the composers and artists presumably earn money when the ringtones are ultimately purchased, there is an existing market for the licensing of song clips for preview purposes and AT&T's use does not constitute a fair use under copyright law.

TIP: The use of previews and clips to sell copyrighted material is likely to be found not to constitute fair use. Note, the often-cited "8 note rule" (that you can use eight notes of a copyrighted work without obtaining permission) is a myth and not supported by the law.