Doobie Dobbie Doo: My Adventures in Song Lyric Copyright Permission--Part I

I made a mistake.

          I know, I know.  You're shaking your head in amazement.  Paulette made a mistake?  She usually makes so many of them, how could she make just one?

          Well, it was kind of a doozy, so I want credit for that.

          Last January when I self-published my novel, The Answer to Your Question, I thought I had done everything right.  I wanted to handle the publishing as professionally as a real publisher would.  I thought I had.

          Since I was now a self-declared expert, I decided I would self-publish a collection of my short stories.  I was steaming along merrily toward publishing Unforgettable (coming to an Amazon near you--sans lyrics--in January, 2014), when I read a post this summer on Jane Friedman's wonderful website about copyright permission, or, I should say copyright infringement, by Brad Frazer

          Brad Frazer is an author himself, as well as a lawyer who has written on matters of Internet and intellectual property law. From what I can tell, he's a swell guy. Not only is his post clear and informative, he responded thoughtfully to a million comments from readers like me seeking (free) answers to their copyright questions.

          If I had any thoughts at all about using copyrighted material, they had to do with some vague, wishful thinking re: fair use of copyrighted material.  Frazer explained that there are two prongs to the fair use question. To be considered fair use, your use must be for purposes such as "criticism, comment, news reporting, teaching, scholarship, or research."

Frazer explains it all this way:

"That's the first prong. If your use falls into one of these categories, then you move to the second prong of the test. A court will consider the following four factors to determine if your use is a fair use:

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 (emphasis added)

4. the effect of the use upon the potential market for or value of the copyrighted work.

If your use falls into one of the enumerated categories AND you are able to prevail factually on at least two of the four second-prong factors, you might succeed in proving that your use is fair and thus not copyright infringement."

Frazer gives the following example:

"Let’s say you are writing a novel for commercial publication and you wish to reproduce the lyrics to the song “Little Red Corvette” by Prince in the book. You are not reproducing the sheet music, and you are not including a sound recording of the song with the book. You are merely causing the literal words of the lyric to appear as prose within your book. Here is the analysis:

  1. Do you own the copyright to the work? No. The author and copyright claimant of these song lyrics are Prince Rogers Nelson (Prince’s real name).
  2. Do you have Prince’s permission? No.
  3. Is your use for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”? No. You are writing a novel.
  4. Is the purpose and character of the use commercial or noncommercial? Commercial.
  5. What is the nature of the underlying work you are reproducing? Is it highly creative and subject to strong copyright protection, or is it less creative or perhaps even not subject to copyright protection at all? This is a highly creative work that is entitled to strong copyright protection.
  6. Did you use the whole lyric or just a few words? You used the whole lyric.
  7. Will your use of the lyric cause Prince to lose money, e.g., people will not download the song on iTunes anymore? No, your use will likely not cause Prince to lose money.

Of all the fair use factors, you would only perhaps win on one of them, the last one, so if Prince sued you, you would likely not be able to successfully invoke the fair use defense. Other defenses may be available, but probably not fair use."

          Hmm . . .

          In the title story of Unforgettable, my autobiographical protagonist, Miriam, listens to Nat King Cole singing that song that he made so famous. In the story I quote a few of the lyrics.  I hadn't really thought about needing to get copyright permission involving song lyrics.  I was under the vague impression that I could quote a line or two of lyrics, just to give a flavor of the song, without needing to obtain copyright permission.   

           So did I really copy right permission to use the few lyrics of Unforgettable I had in mind.  I wasn't going to quote the whole song, and I certainly wasn't about to cause whoever wrote "Unforgettable" to lose money.  And hey, I could even argue that my little self-publishing venture was non-commercial!  It certainly felt non-profit.  Would someone really sue me for using those few lyrics?  Would they even know?  I doubted it.  And I felt including a few of the lyrics was really crucial to the story. 

          Then I read a post by the British writer Blake Morrison describing his experience with using lyrics in his novel South of the River.  At the end of the book there's a party with dancing and music, in which Morrison says he got to play DJ:

          " . . .the tracks I put on for my characters were a mix of 60s classics and more recent numbers. Because the songs were there not just for atmosphere but to echo events and themes in the novel, it was important, I felt, to include the words, not just the titles."  He had restricted himself to just a line or two from the songs, and hoped that would be okay or that no one would notice." (Sound familiar?)

          His editor was not so sure, and had someone from the publishing house secure the permissions.  Here's Morrison describing the results:

          " For one line of "Jumpin' Jack Flash": £500. For one line of Oasis's "Wonderwall": £535. For one line of "When I'm Sixty-four": £735. For two lines of "I Shot the Sheriff" (words and music by Bob Marley, though in my head it was the Eric Clapton version): £1,000. Plus several more, of which only George Michael's "Fastlove" came in under £200. Plus VAT. Total cost: £4,401.75. A typical advance for a literary novel by a first-time author would barely meet the cost."

          Morrison has this advice: "Don't ever quote lines from pop songs."

           Rich Gallagher, who weighed in in a comment following Brad Frazer's post, put it this way: "The safest assumption is unfortunately that there is "no" fair use exemption for song lyrics because of how aggressively the industry treats any usage."

          That scared me.

          I immediately set about finding who owned the copy right to "Unforgettable."  There are two main sources for finding the publisher of lyrics: ASCAP, The American Society of Composers, Authors, and Publishers; and BMI, Broadcast Music, Inc. 

          It was easy to find "Unforgettable" in a search on ASCAP.  It was written by Gordon Irving, and Bourne Music was the publisher.  I wrote Bourne and asked for permission to use the lyrics. 

          Bourne replied promptly with a list of questions, including the names of any other titles of other compositions that would be reprinted in the book (to see if they owned the copyright, I assume).  They also requested a PDF of the pages showing the lyric requests with the surrounding text. 

          When I complied, they proposed a non-exclusive print license for the excerpts for a fee of $500 for 1,000 hard copy units of the publication and with digital right for 1,000 ebooks.

          Fair enough.  I got it.  I understood copyright.  "Unforgettable" was copy righted and I would have to pay to use even those few lyrics.  

          Suddenly the necessity of using those Unforgettable lyrics didn't seem so necessary.  I would have liked to use the lyrics, but I didn't have $500 sitting around to pay for the use, nor did I want to have to deal with Bourne again, in the very unlikely event that I'd sell 1,000 copies of Unforgettable

          I took out the lyrics, but I retained the title of the story and the collection: Unforgettable.

          Because--and here Brad Frazer was so helpful once again--titles are not subject to copyright protection.  Maybe I could have gotten away with the lyric fragments I wanted to use, but I decided I wanted to sleep at night.

          Lying awake anyway, I began to wonder if I had any song lyrics in The Answer to Your Question . . . I didn't think  so.  But then again, I hadn't really been thinking about copyright permission when I wrote that novel . . . I had hoped and assumed it would be published by a traditional publisher, who would take care of copyright permissions, as had been the case with my first two books.  Once I got caught up in self-publishing it, getting copyright permission never crossed my mind. 

          Holy Smoke!  Mea culpa

          When I thumbed through Answer the next morning, I saw that I had a bunch of lines from songs! I had lyrics from nine songs, running the musical gamut from "Amazing Grace" to "Purple Haze!"

          My novel was a virtual time bomb of licensing fees about to go off!

          And not only that . . .OMG! I had a whole song--a complete, whole four verse song reproduced in that dang book without permission of any sort. 

          I couldn't remember where I had gotten the song, which an old mountain woman sings in the book.  I thought it was an old ballad, traditional music with no specific writer--but I wasn't sure.  

          The song is "Who's That Knocking at My Door." I had a bad feeling someone was about to knock on my door--the music industry police.

          I had made a mistake.  I had effed up!  I had self-published a novel without getting permission for the song lyrics included in it.  And I had sold and given away thousands of copies (make that sold hundreds and given away thousands). 


          Stay tuned for Part II of "My Adventures in Song Lyric Copyright Permission"--in which our smarty-pants heroine, having been knocked off her high horse, tries to set things right, and meets a Prince and a Lord(a) . . .

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