As a member of the Authors Guild, I occasionally peek at the discussion board, and any topics pertaining to copyright naturally get my attention. It appears that a common question among authors of both fiction and nonfiction is whether they may quote song lyrics in their books. Further, it seems that a typical experience for many writers is that they will seek permission to quote the lyrics, but upon doing so, are presented with licensing fees so high that they wind up removing the quotes from their manuscripts.
Don’t get me wrong. I am obviously an advocate of permission and licensing when appropriate. But quoting lyrics, or anything else, in a literary work at least implies a consideration of fair use, and it would be a shame if book authors consistently avoid perfectly good quotations for fear of being sued. So, with the understanding that fair use is a case-by-case analysis, I offer the following general thoughts (i.e. not legal counsel) for authors to consider, organized according to the four-factor fair use test.
Factor One – Purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
Right off the bat, assume the purpose of your book is commercial. Do not fall into the trap of thinking that a textbook or guide to cheesemaking or whatever is “educational” in a fair use context and, therefore, not commercial. If it’s going to have a price tag on it, it’s commercial. If not, ask your attorney. Though this is not the primary consideration with regard to quoting lyrics.
More importantly, factor one of the fair use test happens to pose the first question that any author should ask herself when quoting lyrics in the first place: Why am I doing it? Interestingly enough, the legal considerations here can be instructive to the writing. For instance, do you or your characters comment in some way upon the lyrics (e.g. their meaning, lack of meaning, cultural influence, loss of relevance over time, etc.)? If so, commentary is a paradigmatic purpose of fair use. So, if you (in a nonfiction work) or your character (in a fictional work) speculates as to whether there might be, say, euphemistic meaning in the lyrics of “Spaceball Ricochet” by T Rex, that purpose favors a finding of fair use.
A purpose that may be less favorable to a fair use defense would be a use in which you are over-reliant upon the lyrics to do the heavy lifting in your writing. For instance, if your characters enter a party and instead of simply writing, “Low was playing on the stereo,” you write out several lines of that song’s lyrics as a mood-setter (almost like a soundtrack in a film), the rightsholder of that song could argue that this not a fair use under factor one because you are relying on the songwriter’s expression without adding anything new like commentary. (I also just implicated factor three, but let’s not jump ahead.)
Factor Two – The nature of the copyrighted work.
At least with respect to the jurisprudence on copyright to date, factor two is very straightforward for the book author quoting song lyrics. Principally, this factor asks whether the work being used is expressive or informational. By definition, even the most informative jingle is expressive because lyrics are arranged in the form of verse. In a fair use analysis, this one likely goes to the songwriter every time, but since factor two is often treated like the red-headed stepchild of the fair use test (inappropriately so in many cases), it would likely be weighed as null with regard to quoting song lyrics in most cases.
Factor Three – The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
This would likely be the most important factor in a fair use consideration in this context, but may also be controlled by the fact that, as a writer, you probably do not want to quote too much of a songwriter’s work. While there is no standard percentage of copying that favors or disfavors fair use, the factors to consider are: how much you quote relative to the entire work, whether you quote the least amount necessary to your purpose, and whether you have quoted the “heart” of the work.
To expand on that, quoting a line or two from a typical song is very likely in your favor under factor three. But, going back to why you’re quoting the song in the first place, it is worth asking, both legally and creatively, whether you’ve quoted only the amount needed to meet that purpose. Finally, think of the “heart” of a song as the most widely recognizable aspect of it, which is often going to be the refrain or some portion of the refrain. That does not mean the heart of the work is off limits for fair use; but it is worth keeping in mind that you could copy the heart of a song with a relatively short quote.
Factor Four – The effect of the use upon the potential market for or value of the copyrighted work.
Good news! Just like factor two would almost always favor the songwriter, factor four almost always favors you. In fact, it is nearly impossible to imagine how quoting lyrics in a book could serve as a market substitute, or otherwise harm the value, for a license in a song. But do not confuse “harm the value” with “adverse effect” on the market for the original work. You could write a scene in a book in which you quote a lyric and comment upon it in a way that harms market interest in the song, and that is NOT what the fourth factor in the fair use analysis looks for. If your criticism, through fiction or nonfiction, turns readers sour on another creative work, that may piss off the other creator, but it is in no way actionable under copyright law. (And as long as you don’t commit libel or defamation, it isn’t actionable at all.)
Other Limits on Copyright
Although factor three weighs the “amount used” question under fair use, there are other limits under copyright that are related to amount used, and which may also protect the author quoting song lyrics. De minimis use literally means that you use such a small amount of a work that there is no need even to consider infringement or a fair use defense.
Short phrases are not properly a subject of copyright protection. So, what lines do you intend to copy, and how original are those lines standing alone, if you did not tell your reader that a song is present in the scene? You might write the words love stinks in a context that evokes a song by that name such that the phrase has double meaning in your writing, and that should not implicate a need for a license from the songwriters.
Finally, scenes a faire is the doctrine that commonly used elements are not protectable. So, when I wrote above that factor two is “treated like the red-headed stepchild,” the estate of Warren Zevon has no grounds for a complaint just because almost that exact line appears in his song “Dirty Little Religion” (which is definitely not about the fair use doctrine). “Red-headed stepchild” is a commonly used metaphor which nobody may own through copyright.
While book authors should be judicious when quoting song lyrics—and this rule probably applies more to the writing than the legal questions—it should not be necessary that the writer’s default is to abandon an otherwise clever or poignant use of a lyric quote out of fear of litigation. One problem is that once you ask an agent or anyone whose job it is to collect fees, you’re probably going to get a price quote, but that party may not have any idea how you are using the lyrics.
Before even approaching the copyright owners in this situation, it may be worthwhile to get an analysis from qualified counsel in your corner in order to make informed decisions about what to quote and how; and you might even consider having a fair use analysis written to keep on file in case of potential conflict or to present to a publisher. After all, songwriters’ attorneys are well aware that their clients rely on fair use all the time. So, why shouldn’t book authors?
© 2021, David Newhoff. All rights reserved.