Monday, October 5, 2015

It's a Risky Business


Don't mention the song
A landmark decision by a US Federal judge last month left me both delighted and a little disappointed. Delighted because the decision was the right one to make, but disappointed because I’ve lost one of my best examples of the risky business of writing—particularly when quoting lyrics or poetry.

What was this landmark decision? Well, in case you haven’t heard, the copyright on the lyrics of Happy Birthday to You was judged as not being held by Warner/Chappel Music, a decision that will cost the company approximately two million dollars each year.

You read that right. There are big bucks to be made in copyright, and now the question is whether all that copyright moolah should be returned to those who previously paid to use the oh so simple lyrics. The water is still a little murky because Warner/Chappel does own the rights to a piano arrangement of the song; they just don’t own the lyrics.

So who does? Well, sisters Patty and Mildred Hill wrote the lyrics to the song back in around 1893, and believe it or not, copyright on those lyrics will not expire until the end of this year. Unfortunately, no one knows who holds the copyright now. So the birthday party celebrations may need to go on hold for the time being.

Now, I hear you saying, that’s all very interesting (or not), but what’s that got to do with me?

I’m glad you asked. As writers, copyright has everything to do with us, but we tend to think of it only in terms of protecting our work. We don’t always give a lot of consideration to the other side of the coin. We blithely quote bits and pieces from books and songs without realising we may be infringing on someone’s copyright.

First things first, let’s look at how a song written way back in 1893 could still be under copyright. Did you know that copyright exists until the death of the creator of the work, PLUS 70 years? In the case of Happy Birthday, the last sister died in 1945, which means copyright on the lyrics of that song should pass into public domain at the end of this year—provided no other entity has chosen to extend the copyright (tough luck to Warner/Chappel).

Oh, and when it comes to hymns, the same is true. Even some of our old favourites may not yet be classed as public domain. Great is Thy Faithfulness was written by Thomas O Chisholm in 1923, but he died in 1960. You do the math.  

If the lyrics fit ... don't use them?
Let’s take a more recent example. Let’s say you are writing a novel where the main character is driving down a highway listening to Hotel California on the radio. He has the roof down on his red Jag, and he’s singing up a storm as you quote the opening lines of that song ...

Oh no, you didn’t!

Don Henley wrote the lyrics to Hotel California, and although he is getting on a little bit now, he has just released a new album and looks to have plenty of life left in him. Let’s say he lives to be 100. He’s 68 now, so that means he would turn 100 in July 2047. (Happy birthday, Don.) But wait … then we have to add on the 70 years. So based on that, Hotel California would not become public domain until at least 2117. (Had to get the calculator out to check that.) Even then, if someone renews the copyright, it may be a long time before anyone can safely use those lyrics for free.

Ah, but what about fair use, I hear you ask (you are a talkative one, aren’t you?).  Okay, what is fair use? Did you know that “fair use” is only a possible defence if someone sues you for copyright infringement? Even then, there are no guarantees. It depends on what you are writing. Fiction does not rank highly when using this defence.

Lyrics and poetry are best avoided
“Fair use” also pretty much goes out the window when it comes to lyrics and poetry. This is because even quoting a small amount of a song or poem will constitute quite a large percentage of the overall work. If you are determined to use Hotel California in your novel, your publisher will probably tell you to get clearance for it or leave it out.

And yes, you—the author—are most often responsible for obtaining clearance for the use of any material under copyright. In your contract, you probably agreed to something that said you were the author of the Work, that it is original and does not infringe on any existing copyright. This places the responsibility for obtaining copyright clearance on you.

So about using that snippet of lyrics from Hotel California in your next novel? Maybe not quite so appealing now, unless you are planning a 2117 book launch.

When it comes to using material under copyright, clear it or leave it out. 


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DEB PORTER is a publisher (Breath of Fresh Air Press), writer, editor, and popular public speaker, with a particular gift for communicating in a way that is both enjoyable and easy for readers and listeners to understand. Deb has been the right hand person at FaithWriters.com since 2003, and is a regular speaker at conferences, but prefers to spend one-on-one time with authors at these events. As the Coordinator of the FaithWriters Writing Challenge since its inception, Deb has helped shape this weekly contest into arguably the most popular aspect of FaithWriters.com, and she now publishes the winning entries in the Mixed Blessings book anthologies.

23 comments:

  1. Hi Deb - Great article. I agree that fair use is much harder to argue when citing lyrics or poems. Fair use also tends to apply to academic contexts - or if critiquing or parodying a work. I think what makes it even more complicated is that different countries have different copyright rules & the time can change - so it in Australia it is 70 years after the death the the creator but 50 years if the author died before 1955. In Mexico, since 2003, it is 100 years from the death of the author. So how does one work out which copyright applies - the country of the author, the place where the book is published? https://en.wikipedia.org/wiki/List_of_countries%27_copyright_lengths

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    1. That's the other headache. You just can't rely on one law, and that is a very good point about where the book is published. Again, I definitely stand on the old rule: If in doubt, leave it out (or get it cleared). ;-)

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    2. Yes, better to err on the side of caution.

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  2. On another note - this is a great article on how to get permission for lyrics etc http://www.aerogrammestudio.com/2013/05/29/how-to-get-permission-to-use-song-lyrics-in-your-book/

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  3. I had to get permission and pay for quoting a Christian chorus (which I can't tell you about as I can't quote it here) for my book. Now I find it easier to write my own songs. Lol.
    I am under the impression to quote a few lines of a book is okay, or am I deceived by the 'fair use' idea.
    Its a good point you make Deb that if we want our work protected by Copyright, we must honor other rights, no matter how ridiculous it seems. Thanks for a timely reminder.

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    1. Jo, a copyright lawyer made it clear that even a few lines are off limits without clearance. You can get clearance (as Jeanette has shown in the link above), and sometimes that may be quite painless and cheap. Other times (as in the Happy Birthday example), it may be big bucks.

      As the lawyer explained, fair use doesn't really stand with lyrics or poetry because even a snippet of the song constitutes a rather large chunk of the actual work. So clear it, or leave it out.

      (And I agree, better to write your own. LOL. Avoid the headache.)

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  4. Great article, Deb. And thanks for the site, Jeanette. I had to get permission to quote some lines from the song 'Shepherd of Love' in my 'Nobody Hugs Rod Green' book. And I'm so glad I did because I was given permission but at the same time they pointed out I had made a mistake in the lyrics. In my more recent books, like Jo, I put in my own songs/lyrics. Much easier and less risky. However, now that my son has put music to my lyrics and performs them, people think I base the books on the songs, rather than the other way around : )

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  5. Thank you, Deb. Very helpful information for us relative newbies. I have one short story posted at Faithwriters.com that heavily quotes a popular Christian song. I credited the artist in the end notes, but it didn't occur to me to ask their permission. Yikes!

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  6. Thanks Deb. Great post and excellently articulated! :) Loved your humour too. Thanks for letting us know... hmm... as Jo said - much simpler to write my own lyrics than to endanger my life with copyright issues.

    What about quotes of famous people - do you know how to obtain permission for them?

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    1. Good question, Anusha. Somewhat recently (late 90s, I believe), there was a BIG law suit between the descendants of Martin Luther King Jr and CBS about the use of his "Dream" speech. The estate are very protective of his work. The first court case found in favour of the estate. That was over ruled by a higher court, which eventually ruled that the speech was a performance, rather than a published work, and therefore, CBS were not infringing copyright. Rather than take it to a higher court, the two parties settled out of court.

      So ... does that kind of answer your question? There's no blanket answer. If the famous person made the statement in a public arena, you would probably be fine quoting them with reference--BUT there's no guarantee on that (as the Martin Luther King Jr case shows). If it is taken from a book or other written work, I'd probably try to get clearance for it (particularly if you are writing fiction).

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    2. EEK! I've got a line from that speech in a recent poem I submitted to an anthology. Don't know if they've accepted it yet.

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  7. Great warning, Deb. In my next novel I'm quoting a few lines from a public speech made by Vida Goldstein during WW1. It's now part of public record and I do acknowledge where it comes from. Is that a problem?

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    1. Carol, that should be more than fine because it would be seen as a performance rather than a published work. Apart from anything else, she died in 1949, so there's only another four years where it could be an issue ... if it were to be an issue (which I don't think it will be). ;-)

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    2. Actually Carol, after checking, Vida is Australian, so that would fall into the 50 years after her death category. That means you can quote your heart out.

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    3. Thanks for that Deb. Good to know

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  8. Thank you Deb, great article! I had my own experience recently where I requested permission to use Moments in Love from Art of Noise for my video https://youtu.be/hFbBERYN88o. The Publisher did not object nor gave permission but within days 'monetised' the video. It appears that many copyright owners do not object to their song being used 'if they can monetise it.' I had a long conversation with the Publisher about this and it appears to be the 'modern way' re music videos.

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    1. Actually, that's a really good point, and that is starting to be the way things go. It falls into the "if you can't beat them, make as much money out of them as you can" category.

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  9. Hi Deb - Thanks for a timely post. I was an academic for many years and it was fine to quote someone else's research in a journal article or book as long as you used the proper citation. However, it's easy to forget that when citing lyrics and poetry. Mmm ... guess I'd better check the dates for that gut-wrenching Irish folk song I was going to use in my novel as Maggie hovers near death. But that's another story :) Thanks for sharing, Deb :)

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    1. Thanks Nola. You would have been fine with your academic writing. It's fiction where things get sticky. Writing for that low pursuit of making money and entertaining people is not seen as worthy when it comes to claiming fair use. Journalist/Educational purposes are very different. But yes, you'd better check the Irish folk song. ;-)

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  10. It's also worth checking the copyright page in individual books because I've come across the odd one that says you can quote small portions for fair use, non-profit, reviews etc, but again lyrics and poetry would be different. Thanks for keeping us on the straight and narrow Deb :

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  11. Oh, just in time I remembered I have a quote from Invictus in my nearly completed M/S. Thanks so much Deb. I put the line in my character's own words which differed. Whew!

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  12. Good advice, Deb. It's hard to remember not to use lines that have moved into the vernacular now, originally published in movies or songs eg. 'Tell em they're dreamin'
    Well, that's how it goes, I suppose.

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