Thursday, January 5, 2012

The Do's and Don'ts of Using Song Lyrics In Your Writing

The main character in my novel BAND GEEK is a major Beatles fan, and I decided the perfect way to capture that and weave it together with the story was to start each chapter with a lyric from a Beatles song that encapsulated the action and essence of that chapter. Sounds perfect, right? Not as simple as it sounds. There's a little something that stands in the way of that called "copyright infringement." So what's a writer to do when you absolutely, positively must use that song but you don't want to be sued within an inch of your life, and further, what can you do legally?

Don't throw the baby out with the bathwater just yet. First of all, you or your publisher may indeed be able to obtain the rights to use the lyrics, but usually for a fee. Depending on the artist, this fee may range from minimal to larger, but it can add up quickly if you intend to use lots of them. For a newbie writer, this may not be worth the cost to you or your publisher because obviously any money spent takes away from the money made. If you are a more established writer with a track record, this may not be as big a deal and an investment your publisher deems worthwhile if it significantly helps your story.

The rights holder may let you use the lyrics for free on a temporary basis, provided the author is not making any money off of their use, but always contact them and check before just doing so. However, if you intend to circulate the work widely (i.e. contests, writing workshops, etc.) you should probably contact them and let them know the nature of how the work will be circulated, and know that if it sells you will need to secure permission to use those lyrics properly. Once it sells, you will need to contact them again and enter into a contract agreement, they will tell you what the fee is, and you move forward from there. There is no hard and fast fee schedule because fees can vary based on artist and also the amount of lyrics used. If it proves to be too costly, or your publisher is not willing to go there, you may have to scrap the idea entirely.

BUT - there is still something you CAN do. Since a song title cannot be copyrighted, you can use just the song title, surrounded by double quotes, provided the title does not use whole lines of the song. If it does, these songs can be the rare exceptions whose titles are protected under the copyright infringement laws, so the best bet is still to contact the rights holder in these cases to make sure you are still within the fair use guidelines.

So how do you go about contacting these rights holders? The best place to start is by performing a Google search using the title of the song and then the keywords 'sheet music.' The sheet music will often reveal the music publisher, but definitely look at several sources because sometimes songs can be produced in different arrangements by different publishers. You can then contact the publisher directly. If you are still unsure, look up the song in the databases for the major music rights holders such as ASCAP, BMI and SESAC. If you have access to a music lawyer, they can also be a great resource for helping you obtain permissions and make sure you're doing everything above board, but keep in mind they need to get paid too. Once you get the music publisher's information, write them and tell them you are looking to obtain a print license, and what song lyrics you are interested in using.

I, personally, opted to use just the song titles in my case, as it seemed like a very costly venture to go down that road since there were twenty or so chapters, but I will always wish I had been able to include the actual lyrics because they really did work so well within the context of the story. You have to decide what's right for you, not to mention what's in your budget.

So what's the worst that could happen if you don't do all this and you just opt to use the lyrics anyway? The music publisher could sue you and not only would you end up having to pay all those usage fees anyhow, but also court fees and maybe some other fees as well. In the end, it could end up costing you far more than the original cost of the usage fees and also damage your reputation as a writer. Not worth it.

And last but not least, how about using a song title as the title of your book? The good news is: because titles cannot be coyrighted, you're safe there, unless it infringes on a trademark or brand name. Many books are named after songs, but the gray area is if the CONTENT of your book is the story within the song. Then that would, indeed, be considered copyright infringement.

Bottom line: When in doubt, ask before acting!




4 comments:

Elana Johnson said...

I hear this. I wanted to use the lyrics to "Somewhere Over the Rainbow" and my agent said we should probably take them out. We did, and the MS didn't suffer for it. But yeah. Rights issues. Bah!

Robin Reul said...

Whatever happened to any publicity is good publicity, right? I think they should look at it as an honor to be included...lol. Bah indeed.

Phil Hall said...

There is the issue of "Fair Use" as defined by the courts. Basic gist: if your use is of such a minor infringement that does not substantially dilute the claim of the holder, you're fine. What that means is you can use a handful of words...maybe 10 at most...and you're ok. You *might* still get a DMCA notice or other nastygram from a lawyer type guy on retainer, but once "Fair Use" and "non-infringement use" are bantered about that sort of thing stops. There are lots of examples in print of how this all works. But agreed, it is a pain (royal) in the behind.

warjna said...

Hmmm. My Main Character in my work in progress (still in first draft) is using the phrase "Breathe in, breathe out, move on" as a mantra to remind herself that there are things that you just can't do anything about. You have to let go of the things you can't fix and just go on from there. The phrase is the title and a repeat line in the chorus of a song Jimmy Buffett wrote after Hurricane Katrina devastated New Orleans and the surrounding areas. She attributes Mr. Buffett several times, though not every time she uses the phrase. I was planning on asking permission to use the phrase, because I literally cannot think of any other that would be equally appropriate, but would this be considered Fair Use?

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