Nov

26

2012

The Landmine of Fair Use

by Steve Laube

Remember you can use the big green button to the right of this blog to ask us questions. Recently we received two that were on the issue of fair use of other people’s writing.

Steve,
What are the standard fair use rules for quotes of other published works? I used quotes in my book and my understanding was that if it was less than 250 words then you don’t need permission. But a friend is self-publishing and is concerned about quotations fearing she might get sued.

Always err on the side of getting permission.

One major publisher we work with has the author get permission for any quotations from a single source that is more than 25 words, collected (aggregate) across all uses of that source in the book. So if one quote is 10 words and 100 pages later is a quote for 20 words, the author must get permission.

Another requires the author get a written release from every person they interviewed and quoted in their non-fiction project. Including family members like your spouse, parents, or friends.

For more information read this excellent article by publishing attorney Kelly Way called “All’s Fair in Love and War – But Not in Copyright Law.”

A couple years ago a client wanted to extensively quote from one of his previous books (pretty much an entire chapter). But the previous book was published by a different publisher. His former publisher said that it would cost $3,000 to use his own words in the new publisher’s book – the licensing fee. No kidding. The former publisher was rightly concerned that the use of that material would suppress the future sales of that older title because key material would be found in the new book. So the author wrote the check and was able to quote his own words.

Another person asked:
In my book  I use two lines from a song about how when we are together it is heaven on earth to make a point about the role of love in evangelism which might be considered repurposing the work for a new audience.  I also use  two lines from the theme song to “Cheers” to make a point about incarnational ministry and evangelism.   It sounds to me like one or both of these could fall under “fair use.”

I would love to avoid paying licensing fees, as I am self publishing on a shoestring budget,  but I don’t want to get sued either.   Can you give me some clarification on how to determine “fair use”?  

If you are quoting from song lyrics, any and all usage requires permission no matter the length. Back in 1995 Microsoft used the Rolling Stones line “start it up” with music in their campaign for Windows 95. Reportedly the fee to use those three words was well over a million dollars.

Last year a client wanted to use the lyrics of a famous song in her novel. She wrote the artist who was thrilled to get the request. But then the singer revealed the dirty secret. The singer does not control the copyright to the songs they sing. The composer of the lyrics owns the song and they likely have a publisher who manages the permissions. So my client had to write to the publisher, which took some doing to discover. Then after waiting for six weeks got a letter asking for more information. Then the client called me.

I suggested the author simply rewrite the scene and avoid using the lyrics entirely. Saying the name of the song was enough (it was a very famous song). And there is no penalty for naming the song title.

Always err on the side of caution. The last thing you want it a “cease and desist” letter or a lawsuit.

We have a page on our site for Copyright Resources if you want to research this further. (http://stevelaube.com/resources/copyright-resources/)

31 Responses to “The Landmine of Fair Use”

  1. Judith Robl November 26, 2012 at 5:47 am #

    Thank you for this timely post. I just had a conversation with a friend about her new NaNoWriMo novel about this very issue.

    I’ve share on Facebook. Copyright issues scare the pudding out of me.

  2. Jennifer Dyer November 26, 2012 at 6:14 am #

    This is really great information. Copyright law is a murky swamp full of tar pits… Thanks for answering reader questions!

  3. Dina Sleiman November 26, 2012 at 6:21 am #

    I use a lot of song lyrics and poems in my novels. When I learned about all of this, I just started writing fictional ones. Saved me a lot of grief.

  4. Meghan Carver November 26, 2012 at 7:05 am #

    My husband is a community college professor, and his students just don’t understand why plagiarism is such a big deal. Maybe if they had a dose of The Real World? I’m going to send this on to him. Thanks for the great information, Steve.

  5. Diana Harkness November 26, 2012 at 7:31 am #

    Thanks for alerting your readers. I have always tried to be careful about copyright because everyone should be paid for their work. I had inquired about a song and the artist asked to read the context. I sent him the relevant chapters and never heard from the artist again. I rewrote the novel using words in the public domain, but are there special rules on quoting the Bible? No, not King James Version, but more modern versions. And what if I paraphrase or change the quote but it still resembles one of the newer versions? Is there a good way to quote the Bible without violating copyright law?

  6. April Brown November 26, 2012 at 7:37 am #

    In my recent novel – I created a few song lyric lines for a character to sing full of grief. Even now, weeks later, those two lines haunt me. My concern is, what if someone else, somewhere else claims they wrote the same, or similar lines? Will I have to give up what the character sings just in case? I don’t know how to research every single song out there.

    • Steve Laube November 26, 2012 at 10:19 am #

      April,
      The easiest way to test something like that is to place part of the lyric into a Google search. If nothing appears you are likely safe in knowing that your song lyrics are unique. Some day, when you are rich and famous, consider commissioning a musician to put music to those lyrics.

      I find it interesting that is was the lyrics of Bernie Taupin that Elton John put to music. (“Goodbye Yellow Brick Road” for instance.) Elton John did not write they lyrics.
      http://en.wikipedia.org/wiki/Bernie_Taupin#Collaboration_with_Elton_John

  7. Kimberly E. Lepins November 26, 2012 at 9:16 am #

    Steve,
    thank you for that VERY important information! Great guidelines to write by!
    Blessings
    Kim
    (Evinda)

  8. Rebecca Barlow Jordan November 26, 2012 at 9:43 am #

    Steve, I’m assuming the rules are the same for facebook usage? I have seen quotes from my books used freely on facebook–ones still in print–and when I see large portions I gently remind them that although I might not mind, my publisher would probably not appreciate that. They usually include my name after the quote but not which book it’s from, etc. I have stayed away from using others’ quotes on facebook (unless in public domain). If quotes are not in public domain, do the same rules apply as if you were using them in books? If I use a short quote from someone’s book on one of my blogs, I usually give the footnote info, book it’s from, etc. Thanks for introducing this issue.

  9. Sarah Sundin November 26, 2012 at 10:21 am #

    Great advice! And I strongly recommend, from firsthand experience, NOT using copyrighted song lyrics – even with permission. My first two novels contained a few snippets from songs, which added nice color to my WWII stories. Obtaining the permissions required much sleuthing and time – more annoying than the actual fees.

    That wasn’t the end of the hassle. When the novels went into second printing (yay!), I had to contact the publishers again – and some had changed – get new permissions and pay more fees. One song publisher sent me a snippy email that a second printing was not allowed until the permission was obtained – as if I had advance warning! We hit another issue when it came to large-print, book club, and foreign-language editions. I almost lost out on these opportunities because of the lyrics – the new publishers would be responsible for new permissions/fees. So the lyrics were removed from the books and the new editions went forward.

    Not. Worth. It!

    • Steve Laube November 26, 2012 at 10:28 am #

      Sarah,

      Thank you for your first-hand story! Preach the message far and wide!

      You bring up another dirty little secret. If you get permission for something be careful to note the limitations. Often the permission license is only for the first printing. And lately there have been extra costs to cover the perpetuity of ebooks.

      The lesson here is to avoid using music lyrics.

      And also to be very careful about book quotations since the same licensing issues can raise their head.

      Our client Stephen M. Miller has mastered yet another area of permissions. Photographs. If you take a look at his THE COMPLETE VISUAL BIBLE – click here for a sample of the first pages of the book – (http://stephenmillerbooks.com/books/complete-visual-bible/) you will find hundreds of photos. Each one has a secured license for their use.

    • Jennifer Major @Jjumping November 26, 2012 at 6:29 pm #

      Oh my word! What a royal pain!!!

      • Steve Laube November 26, 2012 at 6:54 pm #

        But a necessary one. Think of it this way. If you created something for which you believe you should be paid then if others use it without permission they are, in effect, stealing your intellectual property.

        Not everyone feels this way. Those who wish to share their work freely use Creative Commons (http://creativecommons.org/) as a way to declare the work as their own but to allow it to be shared.

  10. Stephen Myers November 26, 2012 at 10:41 am #

    Steve: I’d like to ask a more detailed question regarding my WIPs combining ‘media and intrigue,’ where pop culture, brands and/or music/artists are referred to in the novels, but am I correct that Fair Use includes an Artists Name and Song Title but not the lyrics of a song?

    If the hero, in my novel an Air Personality, is doing a board shift and snips of his work, on air, include front or back-selling a song title and artist, this is fair use. But if a character wanted to quote song lyrics its a whole different animal (and not worth the time or funds to pursue).

    The character could say, “Those lyrics really speak to my heart,” and relies of either the common popularity of a song/lyrics to the reader or something they might further investigate (as in a purchase/download). Taking the high road (generically) under fair use mentions the artist and/or the song but in creative writing not using the lyrics but referring to the moods or sentiments can find creative and acceptable ways without using the words of those lyrics.

    Also, START IT UP, used by the agency that produced for Microsoft, is a whole different animal in advertising than what a writer should pursue for their works. The copywriter, agency and client had to be in on that pursuit, going through a music clearance agent, attorneys and contracts with the license holders and/or the artists. Its also a higher fee to restructure lyrics (START IT UP vs START ME UP) requiring the artist to over dub in studio time the specific purchased advertising copy. (I was surprised a million dollars covered that). It must have been for a very limited amount of time use.

    Local Radio and TV stations in the 1980s back generally used popular music for background in spots paying ASCAP and BMI licensing fees though most stations had royalty free music libraries (Such as TM, TANNER, THE HIT FACTORY) etc. Today when we produce for any client we require royalty free music purchases and are very careful not to have anything seen (visible on camera) or heard (as in the background) in any of our high end HD commercials. Its a mistake many clients make and have someone with a ‘cease and desist’ order if it finds public exhibition.

    One final note: While in TV (late 1990s) I served as the acting GM while mine was on vacation and took a call from Buena Vista (Disney) of a paid informerical on our airwaves. It was one of those local ‘on the town’ productions of 2 minutes per advertiser shot in their restaurant or nightclub. The producers (out of Juarez Mexico) had not sold all the air time and started filling with clips from Disney Animation. We (the station were not held liable) but we paid heed to the ‘cease and desist from any future broadcast,’ and Buena Vista turned it over to their international attorneys who (with the un-cooperative client) station out of Mexico, working through their judicial process, took the business away from that producer, sued and judgement won.

    Long ago we stopped producing for local advertisers who wanted to cut corners on music or trademarked items (on view in commercials) operating to a higher (national) standard on copyright issues. I’d like to do the same in my novels but am under the basic knowledge ‘Fair Use’ can mention the song artist and title but not lyrics. Is this correct?

    What about mentioning the name of a cologne, perfume, manufacturer as in an antique (radio/Zenith or Jukebox/Seeburg)? Do publishers (starting with editors) frown at such use or is there a set of standards for fair use items? Isn’t there a book on these issues?

    Thanks for the space.

    Steve Myers

  11. Stephen Myers November 26, 2012 at 11:02 am #

    A similar issue is “poetic license.” I’m sure there are rules now covering this issue if not hard and fast in law then in publishers and editors. Your mention earlier of GOODBYE YELLOW BRICK ROAD from Taupin/John made me think of America’s hit song from 1974 (TIN MAN) written by Dewey Bunnell and produced by George Martin.

    What is the difference between Poetic License and Copyright today? Is it far different than 1974?

    Could you get a little into poetic license and how any present/past writers used it (as fair use) verses or contrast to seeking permission and obtaining licensing?

    It was one sentence in the lyrics of the song (in the poetic license of the song referring to other subjects or works as well).

    Thanks again for the opportunity to ask and comment.

    Steve Myers

    http://en.wikipedia.org/wiki/Tin_Man_%28song%29

  12. Jennifer Major @Jjumping November 26, 2012 at 1:09 pm #

    Ahhh, this is interesting.
    My MS has “She Walks In Beauty” by Lord Byron.

    Is this considered public domain, since he died in 1844, or must there be fees to whoever, one assumes Oxford, since his poetry was found in The Oxford Book of English Verse: 1250–1900.
    But it’s also found in almost every English Lit book in the free world.

    It’s REALLY critical to my MS, simply because of the cross-cultural references of “walking in beauty” found in Byron, and the Navajo culture.
    AND it’s a truly swoony poem.

  13. Peter DeHaan November 26, 2012 at 3:47 pm #

    Wow! I was thinking about self-publishing my dissertation (for the sake of academia and future research — not to make money), but I have 850 footnotes and I suspect about one fourth are quotes.

    • Steve Laube November 26, 2012 at 7:00 pm #

      Peter,
      That doesn’t mean you cannot self-publish. Your research efforts may fall under fair use and may not need permissions or licensing. Read this short page from the U.S. Copyright Office that explains what fair use means: http://www.copyright.gov/fls/fl102.html

      The need for some publishers to lock this down is likely to avoid lawsuits from those who feel there rights were violated.

      I recall another situation where an author was writing a highly critical chapter about a specific group and their aberrant beliefs. The author wanted to cite source material and was refused said permissions. This handicapped the author’s ability to use the group’s material as proof of their teaching. The author had to work extra hard to find other sources to build their case. The end result was satisfying but it showed me how easily the author could have been sued if they had used that material without permission.

      • Peter DeHaan November 26, 2012 at 7:55 pm #

        Thanks, Steve. That is most helpful (and encouraging).

  14. Pat Iacuzzi November 26, 2012 at 8:36 pm #

    Hi Steve–

    I was wondering about our own work; if it goes up on a blog anthology/article, whether we can use portions of it in a new story sometime. Lines from descriptions or settings for instance. Can we do that, or are they already considered “published”? Thanks!

  15. Rebecca Barlow Jordan November 27, 2012 at 9:42 am #

    Steve, thanks for all this helpful information. I reposted your blog on facebook. Great resource info for writers/authors.

  16. Sharyn Kopf November 27, 2012 at 11:09 pm #

    Years ago, while working as a radio writer for a major nonprofit organization, I included two lines from the Happy Birthday song in a 60-second spot, never suspecting it wasn’t in public domain*. What a nightmare that turned out to be!

    And yet, the night before I read this post, I slid two lines from a Broadway musical into my WIP. Fortunately, it was a quick fix. Now my character just alludes to the song rather than actually quote it.

    *It’s my understanding that although the Happy Birthday song is old enough to be in the public domain, someone realized what a gold mine it was & bought the copyright. Or something like that. Which is why you rarely hear it in media or at restaurants anymore. The lesson being: just because something should be free use doesn’t mean it is.

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