Fair Use

USING SONG LYRICS IN YOUR NOVEL (Spoiler Alert: You probably have to pay for it)


The creative spark for my third novel – LOSING FAITH – was a line from the Coldplay song Viva la Vida. I wanted to use it as the epigraph for the book, following my junior high school English teacher’s recommendation that an opening quote helps set the tone. But in high school, I never had to pay to insert my favorite Beatles’ lyric in a term paper. Unfortunately, that’s not how it works in the real world.

Whether you can legally use someone else’s copyrighted material in your book is a question of “Fair Use”. That applies to any copyrighted material – be it other novels, newspapers, television movies, or song lyrics. The statute can be found at 17 U.S.C. § 107.

Fair Use is a complicated area of the law, based on a test that dates back to 1843. Recent decisions have held that you cannot create an A-Z encyclopedia of Harry Potter terms (Warner Bros. Entertainment, Inc. and J. K. Rowling v. RDR Books, 575 F.Supp.2d 513 (SDNY 2008)); nor can you bring a famous literary creation back to life in your own novel, even if you make him much older and call him Mr. C (Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009).)

Song lyrics present a unique challenge for raising a Fair Use defense (and for the lawyers out there, it is an affirmative defense for which the defendant bears the burden of proof and not an element of a copyright claim to be established by the plaintiff) because the author is almost invariably using a large portion of the copyrighted work. Even though I only wanted to quote two lines of the Coldplay song, it was 28 words out of 288 – or nearly 10% of the entire song. On the other hand, my novel was nearly 100,000 words, so the Coldplay song was going to be a very small portion of my work.

As a legal matter, the likelihood of succeeding in court on a Fair Use defense depends on several factors, but the most important for authors of commercial fiction are the amount of the song you quote (less is obviously better), and the effect on the potential market for the copyrighted work (making people less likely to buy the song is obviously worse).

But the strength of your legal defense will undoubtedly take a back seat to the real world consideration that your publisher will likely not want to take a chance on being sued, and will refuse to publish if there’s any quotation of a song lyric — no matter how few words — without permission. And even if you self-publish, you should consider that going to court on the issue is probably a bad idea because “winning” a Fair Use claim can be a very expensive proposition.

GETTING PERMISSION

I thought my publisher would get the necessary permission, and pay the required royalty. Once again, I found out that isn’t how it works in the real world.

Standard publishing contracts, like mine, contain a representation by the author that the work is original and does not violate anyone’s copyright. That means that most publishers will require the author to secure permission on his or her own.

Even with my legal training, and the benefit of an IP lawyer in the office next to mine at work, my first stop was Google: How do I secure the rights to Viva la Vida?

Google led to me to ASCAP – the American Society of Composers, Authors and Publishers. I called the main office of ASCAP and asked who I should speak to regarding permission to quote from a Viva la Vida. The person who answered the phone did a quick search of their records, and told me to contact an organization called Hal Leonard.

According to the Hal Leonard website, it’s the world’s largest music and print publisher. Right at the top of the screen was a tab for “Copyright,” and when I clicked on that, I scrolled down to “Permission to Reprint: Lyrics only in a publication.” From there I was directed to a form requesting I provide information regarding the work I planned to publish (including the number of copies that would be for sale and the price of my book), as well as the copyrighted material I wanted to use.

I emailed the completed form on June 26. On the very top of the form it warned that I should allow 4-6 weeks for processing, but on July 3, permission was granted. Unfortunately, permission came at a price – $100 per every 5,000 copies of my book that was sold.

I quickly did the math – for every 50,000 copies I sold I’d have to pay $1,000. But what if my book became a huge best seller? Five million copies meant that I’d owe Chris Martin and his colleagues $100,000! Then again, that would mean that I would have sold five million copies!

My publisher suggested I not use the lyric because it was not integral to my novel and its inclusion certainly wasn’t going to sell any more books. But I had gone through easily a hundred drafts of the book, and those lines were always the first words I read upon each review. Even if it was an unnecessary appendage (an 11th toe?), to me it was still part of the book.

So I sucked it up and cut Hal Leonard Productions a check.

HOW DO YOU NOT PAY TO QUOTE FROM A SONG?

Aside from prevailing in a costly litigation, your options are limited: you can use a song that is in the public domain, or use only the title of the song.

Public Domain

You do not have to pay a penny to quote the lyrics of a song that has entered the public domain. Unfortunately, song lyrics do not enter the public domain for nearly a hundred years after publication. But, if you’re looking to quote a catchy World War One ditty, you’re probably in luck. A list of public domain music can be found at www.pdinfo.com/Public-Domain-Music-List.

A lawyer caveat – the above only applies to quoting the lyrics of a song in text. Using an actual sound recording (as a link, for example) — even if it’s of a song in the public domain — will likely still violate copyright law. As a general rule, sound recordings made prior to February 15, 1972 do not enter the public domain until February 14, 2067. To use sound recordings made after February 15, 1972, you’ll have to wait even longer — those are afforded 95 years of protection, so no need to even check until February 16, 2067.

The Title Loophole

Song titles are usually fair game under copyright law. So you’re free to write that a character was listening to Viva La Vida without needing to secure permission.

Of course, nothing in the law is ever easy. An author still must be mindful of the possibility that the title enjoys trademark protection, and using a song title as the title of your book also raises issues under publicity rules.

POSTCRIPT #1

If you want to know what lines from Viva La Vida was worth the thousand bucks I paid to Coldplay, I can’t tell you here – at least without paying another royalty. But you can see it by opening up LOSING FAITH and reading the epigraph. And, yes, I recognized the irony when Coldplay itself was sued for plagiarism for that very same song.

POSTSCRIPT #2

My novel – A CASE OF REDEMPTION – is about a rap star accused of murder, and the key piece of evidence against him are his rap lyrics. Rather than pay anyone for the right to use their words, I wrote my own rap song.


Photo credit: MarkyBon via Visual hunt / CC BY-NC-SA

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