I allowed the music to develop spontaneously and was experimenting with capturing as a mode of using intellectual property; as a result, the use of the audio materials comes with more complexity than if I had created my own audio or used audio in the public domain. In terms of transformative use that does not devalue the original materials; it seems fair to say that screen capturing the recording of the live version of “Six Days at the Bottom of the Ocean” is an appropriate use. Considering the context in which that use takes place also suggests that the use might be appropriate. The use is also scholarly, not for profit, and acknowledged. On the other side of the ledger, however, “Watch the Bubble” incorporates the entire performance of the song, not just a portion. Does this qualify as fair?
To explore those questions, it helps to bring in more context. Searching the publicly available recordings of concerts at archive.org reveals that Explosions in the Sky grants permission for fans to record and post their concerts. In fact, archive.org contains a version of the same song from a concert that took place two days before the version in the screencast was recorded. While fair use criteria don't prove helpful here, we might consider ways in which rhetorical concerns like ethos might assist. We might characterize the ethos of the band when it comes to sharing live recordings as open, as inviting recording and distribution. Of course that attitude links to a corresponding ethos among users of the material. The expectation is that users are fans engaged in spreading the music of the band.
These intertwined conceptions of ethos prompt me to propose an alternate means of considering the use of the materials, one based on what might be called ethical use. I feel confident that the incorporation of the music is consistent with the spirit in which it is played and posted. Further, I believe that, given the nature of the use, it may well qualify as fair use. And given the ethos of the band and the similar public posting of concert recordings, the song in “Watch the Bubble” qualifies as what I might term safe use: enough of the criteria for fair use are met and the use matches the ethical spirit of the music. At the same time, a conception of ethical use would dictate one other wrinkle in the approach to the materials. Respecting the ethical spirit of sharing suggested by the materials, as a user I would readily remove the project were the band to make such a request. The ethical use hinges on an understanding that both parties support the sharing and extension of the materials. Were that to shift, the use would no longer have the same appeal to me as an author.
The final wrinkle related to ethical use emerges when we consider the multiple parties associated with many creative materials. No doubt the song is situated in a network of interested parties who might make claims about their role in decisions related to use of the materials. The ethical use approach needs to differentiate between these many parties. Were members of the band to ask me to discontinue using the song (effectively destroying the composition), I would gladly comply. Were a record company or other entity to make the same request, I would instead return to considerations of safe or fair use and make a decision according to those criteria.