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. 

For more information http://copyright.com.au/about-copyright/

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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.

On the Bookshelf

Most writers I know have a collection of writing books that they turn to or books have inspired them and been helpful in some way with their writing. Of course these books may not all be books about writing. Sometimes they may be novels or poetry that strikes a chord because they are so honest, or beautifully written, or such great examples of well-drawn complex characters. So I thought I’d share few of the myriad books that are on my shelves. Some of them are by Christians others are not. They are in no particular order but more as they come to mind as I glance around the room.

Writing Books

Walking on Water - Madeleine L’Engle. This is one of my absolute favourites.

Bird by Bird - Anne Lamott

Write His Answer - A Bible Study for Christian Writers - Marlene Bagnull

Indelible Ink - 22 International Christian writers discuss the books that shaped their faith – compiled by Scott Larsen

Shouts and Whispers - twenty one writers speak about their writing and their faith –edited by Jennifer L Holberg

A Writer’s Book of Days – Judy Reeves

Walking on Alligators - A Book of Meditations for Writers - Susan Shaughnessy

The Invisible Child - Katherine Paterson

The First Five Pages - Noah Lukeman

The Plot Thickens - Noah Lukeman

Wild Minds - Natalie Goldberg

Escaping into the Open - Elizabeth Berg

How to read a Novelist - John Freeman

I’ve just finished reviewing this and among the interviews with a host of well known writers, it has some interesting practical information. You can find my review here http://www.livejournal.com/users/orangedale/

Take Joy - Jane Yolen

Poetry

Rilke Selected Poems – English translations by CF Macintyre. I picked this up second hand for a couple of dollars at a Lifeline book sale. What a bargain!

Far from Home - Poems of Faith, Grief and Gladness - Andrew Lansdown

Birds in Mind –Australian Nature Poems – Andrew Lansdown

Flame Tree - Kevin Hart

Other Non Fiction Books I Treasure

John Doe Disciple – sermons of Peter Marshall

Mr Jones Meet the Master – sermons and prayers of Peter Marshall

My first experience of Peter Marshall was watching the film A Man Called Peter with Richard Todd and then reading Catherine Marshall’s story of her husband. So well did Richard Todd play the part of Peter in the movie that when I read the sermons, it is his voice I always hear in my head. I have most of the Catherine Marshall books.

Another author have myriad books of is Madeleine L’Engle. I may not always agree with everything she says, but she makes me think more deeply, a bit like our own Anne Hamilton. I’ve just finished reading one of her books for the third time.

God’s Poetry – The Identity and destiny encoded in your name – Anne Hamilton

Novels

The Friendly Persuasion Jessamyn West

I bought this book after I saw the movie, Friendly Persuasion. It remains my favourite movie and one of my favourite books. I would have liked Except For Me and Thee written by the same author and concerning the same family but I haven’t got it yet. I'm working on it.

Nine Days by Toni Jordan. From a writerly point of view, this is a great example of voice. The story is told in nine chapters each in first person from a different family member over a span of years. Be warned though some chapters contain a little strong language, which seems sadly to be so much a part of today’s books. If you can ignore that, it is worth reading as a writer to learn about voice.

Caleb’s Crossing - Geraldine Brooks. Again this is another which impressed me with its story and voice, though sadly I don’t have this one on my shelves... yet. It’s coming.

I’ve never been one to confine myself to reading only Christian fiction. I read widely so the bookshelves also include a raft of other authors including Nicholas Sparks, Fannie Flagg, Jodi Picoult, Gail Godwin and many others as well as some Aussie Christian fiction authors including Paula Vince and Mary Hawkins.

And there is one book I turn to often, but it does not live on the bookshelf but on the desk, the table near the armchair or wherever I happen to be at the time and that is the Bible.  Where else can you find a book with true stories, poetry, stories, action, prophecy, proverbs and wisdom, symbolism, and picture language,  songs, dreams and their interpretations, etc not to mention the fact that it is the way God speaks most clearly to His people. Through the bible we are introduced to the ultimate hero – Jesus.

Dale writes and reads fiction and poetry. Her latest novel Streets on a Map, was published by Ark House Press.  Prior to that Dale has had seven children’s books and Kaleidoscope a collection of poetry published. Many of the poems in Kaleidoscope have been previously published in Australia’s literary magazines. She has won prizes for her poetry and has been published in several anthologies.
More information about Dale can be found at www.daleharcombe.com or on her Write and Read with Dale blog http://www.livejournal.com/users/orangedale/