1. Overview of legalities of using song lyrics.
2. Answers to questions about using song lyrics.
If a music artist wants to record someone else’s song, there is a set fee for that use, but rights and fees are entirely up to the publisher when it comes to printing lyrics in books. If you don’t want to violate US Copyright Code, read on.
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6 comments:
Thanks for the informative post. Very interesting.
Those articles seem rather one-sided, are slightly out-of-date, and one of them misses an important point.
The media companies don't want there to be fair-use exceptions, so they go out of their way to secure explicit permissions from each other even when fair-use would have been sufficient. They believe this sets precedent that all others should have to follow, but I'm not sure that's actually been tested in court. Sure, if you quote some lyrics in your book, you have technically violated copyright, and the rightsholder could sue you, but whether a fair use defense would hold up is going to depend on a lot of circumstances. Of course, if the rightsholder is a major media company, you probably can't afford to risk an expensive legal battle. I guess, in one sense that means they win.
But do you suppose Penn Jillette got permission from every rightsholder whose lyrics he worked into _Sock_? (If you're not familiar with the book, virtually every paragraph quotes a classic rock or pop song from the '70s or '80s.)
Now that it's 2019, the Sonny Bono copyright extension act has finally expired, and old works have begun--once again--to enter the public domain in the U.S. Of course, it's not as simple as adding some number of years to the copyright date, so it still can be hard to figure out exactly what's under copyright, and many works under copyright are orphaned (which is evidence the system isn't doing what the Constitution says it was intended to do).
And, of course, you have to think about rights in all sorts of jurisdictions, not just the U.S. What's in the public domain in Australia might still be under copyright in the U.S. What's fair use in the U.S. might not be considered fair dealing in Canada or the U.K. It's a big damn mess.
We do tend to throw copyright to the winds (when it's not OUR copyright, that is! We get a lot more scrupulous when someone violates our copyrights, I think :). I agree, most of us might take the risk sometimes-- using a photo or graphic off Pinterest without getting permission, embedding a music video in our blog posts. And generally we'll get away with it.
I know a writer who quoted a stanza of a song lyric, however, and got sued, and another who asked for permission of the music company (not the artists, who didn't own the rights any more, interestingly), and was told she would have to pay $1000 upfront, and then a small percentage on each sale. They learned that music publishers are a lot more sue-happy than most copyright holders, and have some kind of additional protection that I didn't quite understand-- after all, there are SO MANY stakeholders with any recorded music, the songwriters, the musicians, the producers, the recording company-- and any one of those might take some exception.
Fair use is a lot less useful when it comes to short works. To quote 4 lines from a novel would likely be fair use. To quote 4 lines of a 16-line lyric (that is, 25% of it), might not be considered fair use, as you're not supposed to use a "substantial" segment. Also, commercial (rather than educational) use would complicate-- when we're actually offering this work for sale.
I was/am going to write some stories linked to pop songs, and I am going to be pretty careful, not having Penn Jilette's financial resources or legal advisors. I'll maybe quote a line from each song, but no more than that. Titles usually can't be copyrighted, so I might also use the title. And in the ebook, I can probably link to the Youtube of the song-- let Google/Youtube deal with the copyright holder!
As you said, there are all sorts of jurisdictions too. I know in the EU, the "moral rights" of the original creators are protected more than here. A big damned mess, yes! I am a cautious risktaker, really. I very much want to use a Frost poem in a story, but I think his work is still under copyright, impossible as that might seem, considering how long ago he wrote that poem. So I'm thinking of asking for permission from the estate, though of course all that does is alert them. :) Oh, well. It's usually possible to write around the problem, though paraphrasing a lyric or poem is really no solution. Alas.
Yeah, if it's a short song, then quoting just a few lines in a commercial work could weaken your fair use defense. On the other hand, a few lines from a song embedded in a 100,000 word novel leans toward "transformative" and it arguably doesn't adversely affect the market for the song--nobody's going to buy your novel instead of the sheet music or a recording of the piece.
Some of Frost's work just entered the public domain, so it might be worth checking to see when the poem you want to use becomes available.
Titles aren't subject to copyright, but they occasionally are trademarked, especially for things like a TV or film franchise. Hollywood doesn't like the fact that they can't copyright titles, so they set up an industry "Title Registry" and all the major studios and distributors agree not to name their movies using titles registered by another member of the agreement. This is how some Hollywood gossip starts: the press watches which titles the studios register and guesses what kinds of films are in the pipeline. Of course, studios will speculatively register titles that may never come to fruition. I recall that, upon the success of Honey, I Shrunk the Kids Disney registered a bunch of possible sequel titles like Honey, I Sent the Kids to the Moon that were never made.
I remember, btw, reading about Leo Tolstoy's attempt to divest his works of copyright-- only AFTER he died. (The biographer I read made it sound like he was being so altruistic, but the question arises-- why enjoy the fruits of your copyright while you're alive then?) His family was so upset about this prospect of losing a huge potential legacy, they fought him in court. He was finally driven to run away from home! (And he died 10 days later.)
I think in that case the issue might be whether the heirs should have the same level of copyright ownership as the actual creator. Limiting the copyright term would help deal with that-- maybe not just to the life of the creator (what about the widow?), but maybe not as long as it is now-- Life + 70 years (which gets down into "great-grandchildren" level).
Supposedly "Micky Mouse" (Disney) has played a big role in expanding the copyright term.
This weekend, my wife was binge watching an old sitcom whose title sequence originally used a cover of "Lady Madonna" by the Beatles. But on the streaming service, the song has been replaced, presumably because the original licensing terms had a time limit or didn't include streaming services.
The funny bit is that, the closed captions still see show the "Lady Madonna" lyrics rather than the lyrics of the replacement song. I wonder if Sony is going to go after the streaming service for distributing copies of the song's lyrics.
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