Copyright Infringment: Keeping it Legal!

[Cia]

We thank KingdombytheSea for this great and very timely tip on copyright infringement, provided for the GA Staff Blog on 10-18-2012, as more and more authors are looking to take the plunge into being published. Enjoy!

 

Keeping it Legal

by

KingdombytheSea

The Copyright Police do exist, and if you’re an author planning on publishing, it’s a good idea to keep that in mind.

 

When I wrote Social Skills and posted it on GA, I was blissfully unaware of having infringed on anyone’s copyrights. Because Connor is a violinist, music factors heavily into the story. In the second half of the book he joins a pit orchestra, and within those scenes I quoted a few lines of lyrics from a Kiss Me Kate song.

 

As I prepared Social Skills for publication this summer, I handed it off to a beta/author friend, who immediately questioned my use of the lyrics. A little Googling revealed that all lyrics from any Cole Porter musical are copyrighted, despite the fact that they can be found scattered across the internet (Here’s a page with copyright terms in the United States as of January 1, 2012). But could quoting just a few lines really get me in trouble?

 

Yes, it could. Even those lyrics sites can get in trouble, and though they may be too numerous to completely eradicate, some have already been sued. One just got hit with a $6.6 million default judgement a few days ago.

 

Bottom line: When you publish/post something that contains copyrighted material, there’s a chance that someone might see, object, and sue.

 

I didn’t want to risk it, so I took a second look at my work and decided to edit out the lyrics. Unfortunately, I’d really entangled them with the emotions of the scene, and cutting them out proved difficult. Meanwhile, my friend found a link to a site with information on Cole Porter’s Trust and encouraged me to poke around a bit and see what the legal process for obtaining permission entailed.

 

The Trust put me in contact with the publishing company that now owns the rights to the lyrics, and that led me to their Permissions department. I had to email a copy of the book as well as separate PDFs of the pages containing the quoted lyrics. The initial price I was given was $255, which was too steep for me.

 

I did some more digging (or pestering of the Permissions department) and eventually found out the price was calculated based on an estimated 10,000 print run. Many businesses have not caught up with the ebook trend—I won’t have a ‘print run’, and while I’d love to sell 10,000 copies, I wouldn’t mind starting off with a more obtainable goal. I emailed back and requested a 2,000 copy print run, and voila! the price dropped to an affordable $55. I mailed my check and received a ‘lyrics used by permission’ copyright blurb to stick in the front of my novel.

 

Different publishers/companies will obviously have their own pricing structure in place—my friend recommended this article about author Blake Morrison, who wound up paying around $7,000 for his song lyrics usage. And I’ve already been warned off quoting Dr. Seuss, whose estate evidently does go after people for copyright infringement.

 

From my experience, I’d give the following advice to authors:

 

* Think carefully about any lyrics/books/short stories/plays/movies you quote from in your story. You never know when you might get the urge to publish or even make an ebook to release for free on Smashwords. Better to be safe than sorry, and it’s usually easier to reimagine a scene before writing than it is to change one that’s already comfortably sitting in your story.

 

* If you are planning on self-publishing, you should be extra vigilant about copyrighted material, as you won’t have a publishing company to take any of the blame should you be sued. Also, some newer epublishing companies might not do thorough checks for copyrighted material, so as an author, it’s always best to be aware.

 

* If you decide to quote copyrighted material or already have it in your story, do your research. It doesn’t hurt to question the companies that hold the rights or to try to negotiate with them. Perhaps they will one day catch up with the times and start taking a percentage of ebook sales instead of asking for a lump fee up front, but for now you can always ask for their pricing structure and do what you can to get to a mutually agreeable fee. This might involve lowering your estimated print run and then reapplying for permission should you exceed that number of sales, or quoting fewer lines.

 

Though it may not make a whole lot of sense—especially in the case of song lyrics, where quoting almost seems like free advertising—this is the way the world currently works. Even when you attribute quotes to their rightful owners, you might have to pay for the right to use them in your story.

[hh5]

can I guess quoting the title of the song would not be charge anything vs the lyrics?

 

its a pity that we can't call quoting lyrics ... a cover like on youtube ...

gosh I wonder if youtube and itune covers are considered illegal or legal?

 

another twisted question ... what if your lyric quoting was a parody of the original song ...

I heard making a parody are a way to get around original stories ...

Can a song can be subject to this same criteria?

Edited October 18, 2012 by hh5

[Krista]

I'm reading a free e-book and the author names a lot of Brands and the like. She even named Edward's character from Twilight in explaining how the other main character is acting...

 

I mean.. pretty everything she explains has a brand name in it. Cars, Twilight, SUVs, Shoes, Clothes, Malls... I doubt she asked for permission...

 

Great advice though and something to consider when writing, definitely. It is definitely easier to never write it in the first place.. than having to rewrite around it completely.

[Libby Drew]

I'm reading a free e-book and the author names a lot of Brands and the like. She even named Edward's character from Twilight in explaining how the other main character is acting...

 

I mean.. pretty everything she explains has a brand name in it. Cars, Twilight, SUVs, Shoes, Clothes, Malls... I doubt she asked for permission...

 

Great advice though and something to consider when writing, definitely. It is definitely easier to never write it in the first place.. than having to rewrite around it completely.

 

It is great advice, and since prosecution is sporadic, people sometimes feel it's okay to take the risk. A NY Times Bestseller is far more likely to face a copyright challenge than a free ebook by an "unknown" author. As long as the author is aware of the consequences, I suppose the choice is theirs.

 

But naming specific brands in your story is fine. Food (Coke), products like cars (BMW) and household items (Kleenex), names of businesses or corporations (Bank of America, for example), are all perfectly legal. Here's a link providing a very basic list of what's protected and what isn't: http://www.legallanguage.com/resources/copyright/what-works-protected/

 

Thanks again for the post, Kingdom.

[MikeL]

I have no expertise in this matter, so don't rely on these comments. That said, I think there are exceptions, in court decisions if not the law itself, when writing a review, criticism, or parody of another work. That doesn't mean you won't be sued, just that you have a good argument in defense.

 

Thanks for the good advice.

[C James]

Great advice!

 

I don't normally use song lyrics in stories, though I did in one that's set in the music biz. Copyright issues did concern me, but a further issue was that story was about a band who wrote their own lyrics, so using commercial ones wouldn't fit plot wise. I took the easy way out of both issues and just wrote my own, though this does I suppose put me at risk of being sued by me.

 

I also run into copyright issues with photos. I've used photos in stories, especially my current one, quite a bit. They are pictures of areas, such as Gibraltar, Pompeii, etc. Many are my own work, so no problem (except for the risk I might sue myself), but for the rest I try to use pictures and maps from government sites because government can't copyright. However, I've recently learned that this isn't a sure-fire way out; if the government site is using the pic illegally (not at all uncommon) or has licensed it, I'm still in breech of copyright.

 

CJ

[The Pecman]

I tend to doubt that anybody is going to get sued for quoting a few lines from a song for amateur fiction posted on the net, especially if there's attribution (writers' names, copyright info, and so on). But the moment you use it commercially, as with a paid eBook or published book, then you definitely have to get permission.

 

I seem to recall a case where no less than Stephen King mentioned in an interview that he had a 1980s book where he attempted to quote from a Beach Boys lyric as a chapter sub-heading, and the publisher quoted him a $100,000+ pricetag. Granted, it's different if you're a guy who's already had a dozen novels that have sold in the millions of copies, vs. an unknown who'd be lucky to sell a few thousand copies. Still, King was annoyed enough that he dropped the song and replaced it with another that cost him a fraction of that price. 

 

There is also such a thing as fair use, and I'm curious as to where the line is drawn between fair use and a legitimate copyright infringement. I'm definitely a guy who will quote from song lyrics in my novels on occasion -- even used a song title as the title for my first novel, Groovy Kind of Love -- but I've generally gone back and whittled down the lyrical content so it's not too intrusive. 

 

I think what the music publishers are really concerned about is the plethora of sites out there that reproduce thousands and thousands of song lyrics for free, while raking in all kinds of money on banner ads and ringtones. Clearly, authors who are writing gay fiction for a small audience are not in this category. I think suing any author would be a stretch. 

[The Pecman]

I'm reading a free e-book and the author names a lot of Brands and the like. She even named Edward's character from Twilight in explaining how the other main character is acting... I mean.. pretty everything she explains has a brand name in it. Cars, Twilight, SUVs, Shoes, Clothes, Malls... I doubt she asked for permission...

 

There's a catch-all statement you can say in the initial indicia: "Any trademarks or company names used in this story are the property of their owners and are not intended to be an infringement." James Bond can wear a Rolex and drink a rum & Coke without anybody getting sued. It is different with film & TV, where if brand names are visible, you do have to get them cleared in some cases. Generally, car manufacturers don't mind if (say) a "Ford" logo is visible in a chase scene, so stuff like that is not a problem. 

 

Trademarks and copyrights are different points of law that sometimes overlap. Quoting song lyrics is definitely a dicey area in publishing, but I strongly tend to doubt they're going to chase you if it's for non-commercial use. The moment you try to sell the story as a book (physical media or eBook), then it's going to cost you money to get it cleared.