Wants to Use Lyrics and Tweets in Musician Biography

   

We love musician biographies and memoirs.
(One of our favorites is Playing the Bass
With Three Left Hands by Will Carruthers.)

Dear Rich: My non-fiction historical biography of a musician examines each album, song, and concert, in a review/analysis format. What are the fair use guidelines for lyrics? Can I use two lines? What if I need to use three lines? Also, what are the legalities regarding tweets inserted to clarify points that I am making in the biography? 

If you're using the lyrics for purposes of criticism and commentary and you’re only reprinting two or three lines, you can rely on fair use as a defense. (Caveat: The copyright owner can still sue you, but you would prevail in the lawsuit.) If you’re inclined to seek permission, the fees for reprinting lyrics in a book are not fixed. (We've provided a "lyric permission" letter in our permissions book). You can research song owner information at Harry Fox or check Hal Leonard, a company that often grants print permissions.

Reproducing tweets. Copying individual text tweets is unlikely to trigger a lawsuit unless the tweeter can demonstrate sufficient originality and creativity to qualify for copyright protection (a difficult task when considering the brevity of tweets). You’re more likely to run into problems when reproducing long threads of tweets or if you post a collection of tweets by one person. This article provides the basics on tweets and copyright.

Can We Modify "Edelweiss" for Prison Retreat?

Dear Rich: My church group travels to prisons to conduct retreats for inmates.  We'd like to use the song Edelweiss, but with different words.  Would this be okay?
Many music lovers believe that "Edelweiss" is an Austrian folk song and that it was included in the Sound of Music to add cultural authenticity. However, the song was co-written in 1959 by Rodgers and Hammerstein (their last song before Hammerstein's death). The song is still protected by copyright. To seek permission, you should contact Concord Music publishers. Under copyright law, altering song lyrics requires permission unless excused by fair use (an issue which is difficult to predict and expensive to litigate). As a practical matter, you're probably not going to run into problems with a "don't ask - don't tell" approach as the copyright owner may not want to bother chasing after a church group for this type of infringement.

Any Way Around Lyric Licensing?

Lorenz Hart: one great lyricist

Dear Rich: I want to start a lyric website that would link to a reference site like Wikipedia. Would I need a linking agreement or have to pay a fee? I am considering framing as an option as well.  I was wondering if there was any way around leasing the lyrics from publishing companies  or from a website that provides a leasing API such as Lyricfind. 
You shouldn't run into a problem (or have to pay a fee, or have to sign an agreement) when linking to a publicly accessible web page. Hypertext linking--like this--only causes  a problem if:

• you're linking to infringing material,
• you agreed to a license agreement that prohibits linking, or 
• you're confusing consumers --for example, users believe, your site is the source of the framed content.

Licensing the lyrics. We don't know of any legal way around licensing lyrics. Having said that, we are also aware of the hundreds of unauthorized lyric sites on the web. The National Music Publishers Association (NMPA), prodded by "squeaky wheel" songwriters has ramped up its pursuit of pirate lyric sites reaching settlements with sites such as RapGenius and LiveUniverse while it continues to pursue others. In other words, unauthorized users may fly below the radar ... but as page views increase, so do the chances of being hassled.

Using Lyrics in a Website Logo

Dear Rich: If we would like to use a few lines of a song for a logo that will represent a website or blog logo, is that ok? Traffic to the site is not huge but would like to use it for logo art and if we want to share thoughts on how the song inspired us?  Here are some reasons why you probably won't have to worry about being pursued: (1) If traffic to the site is not substantial, the song owners are unlikely to learn of your use. (2) If the song owners do learn of it, they may not care (unless they find the use offensive). (2) If they do care about it, they probably won't bother to pursue you because a lawyer will likely advise them that you have a fair use defense. (3) If they decide you don't have a valid fair use argument or they want to pursue you for trademark claims, they will likely decide against lawsuit unless they have reason to believe that your pockets are deep. Of course, if the songwriters smell money -- for example, if Facebook, Apple, Amazon, or Google buys your site -- disregard the reasoning, above. Also, because your logo functions as a trademark, to further protect yourself, consider a disclaimer on your homepage stating that the songwriter isn't associated with your site.

If Lyrics Are Added Later ...

Dear Rich: I purchased and enjoyed reading your book "Getting Permission," but I can't find an answer to the following question: I am a lyricist, and a composer has asked me to write lyrics for his songs with the intention that we would each own 50% of the copyright in the resulting song (music + lyrics). I have done this with other composers and registered the song (music + lyrics) copyright in our names jointly. However, this composer wrote some of his songs years ago and already registered the copyright on the instrumental composition solely in his own name. For these songs, what's the best way for us to end up jointly owning the music + lyrics 50-50? I wondered if we need to sign an assignment agreement whereby he assigns 50% of his ownership in the existing music composition to me (and we'd register that assignment)....and then we'd file a registration for the song like usual where we each own 50% of the music + lyrics? I don't want him to continue to own 100% of the existing instrumental composition - I want to own half of that, just as he will own half of my lyrics. If you want to be a half owner of the instrumental, you will need an assignment of 50% of the copyright to the song.
Are you joint authors of the musical work? As for the version of the song with the lyrics, you can register this as a jointly-authored work provided that each of you prepared your contribution with the intention that it would be eventually combined (into a single song). Even if the composer didn't know you at the time of writing the instrumental, it can still qualify as a jointly authored work if the composer had always intended that words would be added. In that case, you can register the song as a jointly-authored musical composition. The law presumes that your shares are equal but its best to memorialize that arrangement with a collaboration agreement. Otherwise, confusion may occur.
If the composer did not originally intend to add lyrics ... In that case you can register the words and music as a musical composition as a derivative version of the original instrumental and list yourself as a co-owner (assuming composer assigns you a 50% ownersip interest).
P.S. Thanks for using Getting Permission, but we think Music Law might provide more help.

So Many Copyright Questions ... So Little Time

Dear Rich: (1) What is the length of time the U.S. Copyright Office takes to approve or not approve a copyright application? (2) If I secure a lyrics copyright on a public domain melody for commercial purposes can someone else use that same melody with different lyrics --- say a competitor -- and secure another lyric copyright on that same melody? (3) Regarding the renewal of copyrights, is a renewal of copyright application sent out to copyright owners at the appropriate renewal time, by the copyright office or is there a formal time frame that copyright owners must adhere to? How many times or how often is that renewal required? (4) When using public domain music, it is difficult for me to not have a doubt the melody could have copyright protection. Does using a disclaimer provide some helpful consideration in the case of an infringement? Does using a disclaimer absolve the defendant from fines if the cease and desist notices are honored and observed? (5) If a request for a copyright on an established (for sure) melody in public domain has not been approved or affirmed by the copyright office, and an opportunity to negotiate a deal for that completed song arises, what are the risks if the business is carried out despite the fact the copyright and request had not been confirmed? We'll go through your questions, below, but first we wanted to remind you that copyrights are not like patents or trademarks for which "approval" by federal government examiners is essential for protection. Copyright is automatic and registration is necessary only if you want to sue an infringer. Here are your answers by number:
(1) It takes three to five months for an electronic copyright application to be processed. It can be expedited if you are suing someone.
(2) Yes, anyone can receive copyright protection by creating lyrics for a public domain melody (ask Elvis).
(3) Copyrights no longer have to be renewed. Renewal obligations ended for works created after 1963.
(4) Music is either in the public domain or not. If you need help determining public domain status, consult this website or use this book. A disclaimer may have some effect in a trademark infringement case but a copyright disclaimer -- especially the meaningless and confusing use of "No copyright intended" -- has little to no effect mitigating copyright infringement. 
(5) You can't acquire copyright protection over a public domain melody. You can only acquire protection for original material that you add to the melody, or for the manner in which you creatively re-construct the melody.

Charity Seeks Clarity: New Lyrics for Old Songs

Dear Rich: I am seeking clarity about a non-profit educational project that includes a sing-along supplement. I have written new lyrics about money and charitable giving for a number of existing song melodies--most of whose original lyrics do not reference either money or giving. (1) Does this fall into the categories of fair use and/or transformative work? (2) Is simple publication of my new lyrics with "sing to the tune of [name of song]" likely to be problematic? 3) Should I be copyrighting my own new lyrics, either separately or as part of the printed publication? 4) How would you suggest proceeding? Assuming these are not parodies or "rewrites" of the lyrics, you're very unlikely to run into obstacles. Performing, recording the songs, or including the sheet music could be a problem but if you're not doing any of that, and you're simply referencing the songs as a source for the melody, we doubt any music publisher will bother writing a letter of complaint. We also doubt whether a fair use analysis applies because what you're doing is not likely to be an infringement.
Should you register? That's up to you. You get copyright automatically without registration and probably only need it if you're expecting to sue someone.

Posting Song Lyrics at Memorial Sites

Dear Rich: Can you post song lyrics at an online memorial site such as those offered by legacy.com if you credit the author of the lyrics? I have found the lyrics printed on at least five other sites, including Wikipedia. When you use legacy.com you agree, to their terms of service which state:

You agree not to Submit any Material that ... contains copyrighted content (copyrighted articles, illustrations, images, lyrics, photos, audio, video, poems, text, or other content) without the express permission of the owner of the copyrights in the content.

So, if you're the kind of person who abides by all the rules (i.e., you never enter through the exit at Costco) then you probably wouldn't post copyrighted lyrics. If you're the kind of person who disregards terms of service, then the next consideration is whether the copyright owner (or legacy.com's administrators) will notice the infringement, and if so, whether they will do anything about it. We think the answer to both questions is "No." In any case, it's hard to imagine a song publisher suing someone for infringement over a memorial posting. The bad publicity on that would surpass even the Macarena fall-out. Finally, crediting the author won't excuse infringement, and the "everybody else is doing it" defense (applicable in some situations) also won't fly.

She Wants to Use a Word From Cheesiest Song Ever

Dear Rich: I'm trying to avoid seeking permission to mention a song in a novel I'm writing and plan to self-publish. I understand that song titles can't be copyrighted, but I'm wondering if quoting a single word from a named song will require permission, given the context: two of my characters are arguing about the lyrics to Kiss From a Rose, with one saying that a grave is mentioned in the song, and the other contending that the word is "gray" (which my research tells me is the case). One character also says that the lyrics refer to a kiss and a rose, but since these words are given in the song title, I would hope that they are safe. Am I on dangerous ground with the grave-versus-gray dialogue? Also, if one of my characters refers to Kiss From a Rose as "like, the cheesiest song in the world," would this be considered libelous? Let's address your last question first. You are not committing libel because you are not making a false statement. "Cheesiness" is defined as "trying too hard, unsubtle, and inauthentic." Therefore, we can conclude that Kiss From a Rose is actually like, the cheesiest song in the world (it's number two of cheesy songs on this list). Even if it was the third or fourth cheesiest song in the world (or didn't even make the top ten), you and your characters are free to diss any Seal song under First Amendment principles.
Using lyrics. It's fine for your characters to talk about songs and even quote one or two lines under fair use principles. (Spoiler Alert: In our humble opinion, Kiss From a Rose contains some of the strangest, most incomprehensible lyrics ever!) In any case, you should probably only consider seeking permission if you're using more than a couple of lines. We talk more about when permission is needed for song lyrics (and how to get it) in this book.

Can we use lyrics within artwork?

Dear Rich: Can I use lyrics in a series of art posters I'm creating? The posters are a collage featuring images of musicians and events from the year that the song was a hit. So, for example, I have images that match a few lines from Marvin Gaye's song, What's Going On, along with a few lines from the lyrics. We're not sure why you bothered asking the Dear Rich Staff. After all, the folks over at Yahoo Answers seem to have already addressed this issue. Oh wait, we see why ... because the Best Yahoo Answer kind of sucks. We're guessing it's the 'Best Answer' because it's the answer that best suits the needs of the person asking the question. Oh well, it will all be over soon!
Right, you had a question. A few months ago we answered a question about using lyrics in a book, and for the most part, the same rules apply when using lyrics in connection with artwork. Limited use of lyrics -- perhaps four or five lines -- may be excused as a fair use. But more extensive quoting of the lyrics requires permission. Of course, if you're just doing a one-of-a-kind artwork, it's unlikely to be an issue (unless you write to the lyricist to share your excitement). But if you're mass producing posters with lyrics and distributing them via the web, you're more likely to trigger a cease and desist letter.

Those 70's Lyrics: Do I Need Permission?

Dear Rich: I'm working on a book which will be published and it will include music lyrics, but only the lyrics. These lyrics will be from contemporary artists as well as artists/bands from the 1970's. Do I need to get permission to include them? Talking about great contemporary lyrics, please promise us you'll use some Stephen Merritt lyrics. We just watched this documentary about him and thought, 'Wow, now there's a free-thinking lyric writer.'
Right, you had a question. To some extent, it may depend on what you're doing with the lyrics. If you're using them for purposes of criticism and commentary and are only reprinting a chorus or verse -- usually four or five lines -- you can probably rely on fair use as a defense. (But, as we always warn, there's no guarantee that a music publisher won't hassle you over fair use claims). If you're reprinting more than that, or you are not commenting upon the lyrics, you should seek permission from the music publisher to reprint a song’s lyrics in a book. The fees for such uses are not fixed, so a music publisher can charge whatever the market will bear and fees range from $50 to hundreds of dollars to reprint lyrics in a book. We've provided a "lyric permission" letter in our permissions book, but nowadays you can probably work it out with an email exchange. You can research music publisher information at ASCAP, BMI, or Harry Fox. Alternatively (as the lawyers like to say), if you are self-publishing to a limited audience, you can take the risk and operate without permission, though successful writers opine against that.