Christine's Note: This is a guest post by Kathryn Goldman, a lawyer who represents writers, artists, and businesses to protect their intellectual property. Check out Kathryn's free ebook, Rip-Off Protection Report for Creative Professionals. [Her article below is written to give us an idea of how to be thoughtful about intellectual property and the law when we write our stories, and is not legal advice.]
Music evokes emotion, sets a mood, and brings fresh, dynamic and sometimes startling ideas to a writer. For many writers, music is a muse.
When that happens, the written work can become inextricably bound to the music in the writer’s mind. As part of sharing their creative vision with the reader, writers often want to incorporate the lyrics of the song that inspires them into their story.
But just like the creative work of an author, a book, is protected by copyright, the creative works of songwriters, lyrics, are protected by copyright.
In order to use someone else’s lyrics in your fiction without infringing that creator’s rights, you need to either:
1. Establish that the song is in the public domain;
2. Obtain permission from the publisher of the lyrics;
3. Satisfy the requirements of the fair use defense; or
4. Avoid the use of lyrics altogether by just referring to the song title.
Songs in the Public Domain
Creative works in the public domain are not protected by copyright, they are owned by the public and can be used in your story. Trying to figure out whether lyrics to certain songs are in the public domain can be tricky.
Generally speaking, any song published after 1977 is still protected by copyright. Any song published before 1922 is in the public domain. Songs published between 1923 and 1977 need to have their publishing history traced carefully to figure out whether they are protected by copyright or are in the public domain.
The obvious problem, of course, is that songs written before 1922 do not tend to inspire modern fiction writers. Public domain status for those songs is useful in works of historic fiction, but not in contemporary stories. Here is a list of songs that are in the public domain.
Let’s take a look at how three different authors of contemporary fiction handled the problem of using song lyrics not in the public domain in their stories.
Obtaining permission to use song lyrics is the safest route to take before including them in your story, but it is not always the easiest route. It can be difficult to figure out how to contact the publisher or the copyright holder for the lyrics you want to use.
There are at least two groups, ASCAP and BMI, whose job it is to license performance rights to various songs and they may be helpful in identifying the publisher of the lyrics. Performance rights are not what you need, so ASCAP and BMI cannot help you with that, but you can get some useful information there to start your search. Ultimately, it is the owner of the copyright to the lyrics you need to contact, not ASCAP or BMI. Here is a sample permission letter.
In her book Slammed, Colleen Hoover relies heavily on lyrics from songs written and performed by the Avett Brothers. In interviews that she has given, Ms. Hoover tells us that she reached out to the Avett Brothers and asked their permission to use their song lyrics in her work. She was lucky that she was inspired by the songs of popular artists who are generous with their creativity. Slammed went on to be an NYT bestseller at a time when the Avett Brothers’ popularity was ramping up. Giving and getting permission seems to have worked out for both the Avett Brothers and Ms. Hoover.
Is It Fair Use?
Remember that attribution, or giving credit to the copyright holder, is not permission. If you don’t have permission to use the lyrics and the lyrics are not in the public domain then you must rely on the legal doctrine of fair use. Fair use is an exception to the rule that you cannot use someone else’s creative work in your own work—if you are using their work in a “transformative” way and for certain purposes. Learn more about fair use here.
One of the factors that is considered in the fair use analysis is how much of the underlying work you are using. The problem with relying on fair use in the context of song lyrics is that lyrics are so short that any use of them is considered to be using too much to be fair. It’s unlikely that a court will find fair use with song lyrics in your fiction.
Avoid Using Lyrics, But Still Add the Emotion
The best way to solve the problem of the evoking the mood and emotion drawn from popular music is to avoid the use of lyrics altogether and just refer to the title and the artist of the song.
Titles and short phrases are not protected by copyright and can be used in your story. The name of the artist can also be used. (Remember that there are different rules if you want to make the artist act as a character in your book. See “How to Use Celebrities and Other Real People in Fiction.”)
A great example of this technique is Stephen Chbosky’s The Perks of Being a Wallflower. Music is threaded throughout this story, but lyrics are never quoted.
- For instance, Charlie makes Patrick a mix tape as a Secret Santa gift. He lists the names of the songs and the groups who sing them, but not the words. (Chapter 2). After listing the songs on the B side of the mix tape, Charlie describes the feelings he wants to inspire in Patrick when Patrick listens to it, “I hope it’s the kind of second side that he can listen to whenever he drives alone and feel like he belongs to something whenever he’s sad.”
- Charlie goes on to say, “. . . in the palm of my hand, there was this one tape that had all of these memories and feelings and great joy and sadness.” Chbosky is able to capture the full power of the music by listing the songs and describing the feelings. This is a powerful device to overcome the limitations imposed by copyright protection on lyrics.
Ready Player One by Ernest Cline is another excellent example of using song titles and the artist’s name to evoke a sense of place and atmosphere. Ready Player One is filled with pop culture references from the ‘80’s from classic video games to popular television shows to rock albums including both descriptions of the art and the music.
- Throughout the entire novel, the author never directly quotes the lyrics of a song—with one exception. In chapter 7, Parzival refers to, “the lyrics to an all old Schoolhouse Rock! song stuck in [his] head: ‘to run, to go, to get, to give. Verb! You’re what’s happenin’!’” In the acknowledgements section of his book, Cline doesn’t mention having permission to use these lyrics from Schoolhouse Rock! The lyrics to the song aren’t in the public domain and, as we’ve seen, fair use doesn’t apply to song lyrics.
- I puzzled over how Cline could quote these lyrics verbatim without infringing copyright. My speculation is that Schoolhouse Rock! is considered a TV show and its copyright registration is not for song lyrics. If that’s the case, using that snippet of what is really dialogue from a 20-minute television show could be considered fair use.
Permission or public domain are what will protect you from claims of infringement if you want to include lyrics in your fiction because fair use is not going to help you. By being able to use the titles of songs, the creative solution is to evoke the emotion of the song by naming it and the artist and describing the feelings you want your reader to experience.
A big thanks to Kathryn for stopping by! Be sure to check out her free download:
Rip-Off Protection Report for Creative Professionals.
A big thanks to Kathryn for stopping by! Be sure to check out her free download: Rip-Off Protection Report for Creative Professionals.