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shayla sullivan

Play Fair with Fair Use

Part One of the Copyright Series

Listening to my favorite ‘80s playlist one night, I decided to put on a pot of hot tea and work on my draft to my book “Nostalgia”, a fiction sci-fi that deals with the nature of time, memory, and mortality.  Steve Winwood’s “The Finer Things” came on and it hit me.

This is the perfect soundtrack for this book!

The lyrics, the melody, everything about the song conveyed the unique mood that I wanted to set for my readers on their journey back to the ‘80s. To “live while we can” and the overall message in those lyrics felt like the perfect epigraph. 

Great!

I researched the process of using song lyrics in a novel, assuming at first that I’d simply need to cite it as I had always learned to do in college.  But then that research road lead me deeper and deeper into the land of Fair Use and Copyright Permissions.

To start, I needed to find out the actual songwriters in order to contact the publisher.  Once located, I would need to let them know the specific use of the song for my project.  After learning that the song has more than one publisher, I had to locate the contact information for each, which then lead me to needing to contact the PRO (Performing Rights Organization- SESAC, BMI, or ASCAP- primary licensing agents for songwriters and the music publishing companies). Luckily, all of them were listed with BMI.  From there, I was directed to Hal Leonard to finalize the process.

The agents at Hal Leonard needed to know more about my book and how I intended to use the song.  They needed to know exactly which lyrics were to be used and where it would be placed in the book. That made sense since they wouldn’t be comfortable with me using the lyrics as part of something defamatory toward the artist.  After sending them a sample chapter, the request was approved, and I was quoted a fee.  Once the fee was paid, a contract between the publisher and I was signed, and I was officially granted the rights to use the song lyrics.

Whew!  A lot, wasn’t it?

It was, but it taught me a thing a two about fair use and copyright which garnered my own interest into the business of publishing.

But I said all of that to say this…

PLAY FAIR WITH FAIR USE AND COPYRIGHT!

What is fair use?

Fair Use is the term for the limited of copyright-protected material where permission from the owner is not required. Using this type of material beyond a particular scope could be considered as infringement, and could land you in legal trouble, so obviously, knowing the boundaries of just how much material can be safely used without the owner’s permission is not only smart, but it is ethically fair.

Authors, academics, and journalists sometimes need to temporarily use the words of others to cite, critique, comment or enhance their own material, such as in the example that I gave about my own book.  But there is a difference between what I wanted to do and what an academic, researcher, or journalist may want to do with protected copy-written material.

According to U.S. Copyright Law, (17 U.S. Code § 107), work can be directly copied when it is being used for editorial critique, an opinion piece, academic scholarship, reporting the news, or research.  So why did I have to track down the publishers, pay, and sign a contract? The big difference there was that I intended to use the copyrighted work in my own work for profit.  My book is for sell (commercial use); therefore, I needed to be granted permission and given a copyright license.

But does every single thing hold copyright protection?

No.

Some works do not yield such protections and fall into what is called the public domain.  This includes works that have no known authorship, scientific laws and principles, public laws and policy, ideas and general facts are not granted federal copyright protections and can be used in any format for any purpose without needing permission. And as of January 1, 1978, material that holds copyright protection automatically becomes part of the public domain 70 years after the author’s death.

For everything else, there are standard factors that come into play when considering if a use of protected work is fair use or infringement:

PURPOSE

Using protected material in a way that is designed for commercial use (products or services to make profit) will almost always be deemed as infringement; however, copying works for educational, news reporting, or providing a personal critique is more likely to be fair use.

NATURE

Because the courts are more protective for works of the arts (film, music, art, poetry, etc.), they carry more protection making it harder to prove fair use.  More often, fair use is commonly found for non-fiction works since their uses are broader and are not seen as competitive or harmful to the original owner of the work.

QUANTITY

While copyright laws do not set the exact parameters for “how much is too much”, its better to figure that the more material you use, the less it is likely to be considered fair use. Still, courts will tend to weigh the amount of your use against the amount of the whole product, with the owner of the work having the most say on how much was too much.

MARKET VALUE

As the most complicated factor of the four, this deals with the affect that your use will have on the overall marketability of the protected work.  Just as in the first factor, if your use is commercial in nature at all and a license is required, then the market value is sure to be affected, beneficially or adversely.  In either case, it is safest to purchase the copyright license in advance.

See More about Fair Use for further explanation.

Examples of fair use versus needing to request permission:

  • My desire to use the exact lyrics of Steve Winwood’s “The Finer Things” in my novel NostalgiaNeeds permission
  • A professor at the University of Memphis creating a PowerPoint presentation for students to analyze the lyrics of Pink Floyd’s “Another Brick in the Wall” – No permission needed/ Fair Use
  • A local band wanting to record a cover of Queen’s “Bohemian Rhapsody” – Needs permission * key word is “record”
  • A blogger making social commentary on exact lyrics from The Styx’s “Mr. Roboto”- No permission/ Fair Use

Purchasing copyright licenses can become time consuming and expensive, but still very necessary when applicable. Since Nostalgia visits the world of the 1980s, I secured a copyright license for the epigraph only and made references to all other songs that my characters were listening to.

These are only general guidelines to follow (not legal advice), and when in doubt, contact an attorney or check the U.S. Copyright Office for further guidance.

Hope this helps!

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3 Responses

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