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.

Songs About Twitter

Dear Rich: I'm a composer looking to set texts from blog/Facebook/Twitter posts. Probably 20-30 words from each post, woven together in a musical work. My question is are posts made on social media sites considered public domain? If not, does fair use come into play here since I'm using so few words from each post and weaving them together into a new and unique work? 
We think you should proceed with your project. Here are some rules to guide the process:
Short phrases are not protected under copyright. That's right, copyright does not protect short phrases. The trouble is that nobody is clear as to how "short"  a short phrase can be. We've written about "protectable brevity" before and as we pointed out, it's not the number of words taken, it's the uniqueness and value of the words as well as the way in which you re-use them. The risk meter generally goes up when you take more than about 20 words.
Fair use may work but ... Even if the posts are protected, your project sounds ideal for fair use protection -- that is borrowing short amounts of verbiage for purposes of commentary or transformative purposes. Of course, we must always point out that fair use is a defense that is raised after you're in a dispute.
Just Sayin' Dept. It's unlikely someone will sue over the use of a tweet or a 20-word Facebook entry but one individual who borrowed Tweets for her own artistic purposes suffered backlash in the marketplace. For the same reason you should avoid posting any tweets or posts that identify an individual and reveal personal information. It's unlikely someone can claim privacy concerns over a Facebook or Twitter post, but if you're seeking smooth sailing, you should avoid that sort of activity.
BTW Dept. There's exciting news for copyright geeks: The Copyright Office has unveiled a searchable fair use database. Check it out.

She Wants to Curate and Embed Tweets on Her Blog

Dear Rich: I'm a freelance content marketer who works with corporate entities. Can I embed tweets in my blog that are curated from various Twitter feeds (not associated with my clients)? Can I embed tweets on blog posts that don't direct anyone to buy any products (via blog copy), yet product shots are located on the same page. If it is illegal, then why can online media outlets embed content on web pages that feature advertising. Isn't that essentially the same situation?
Copying text tweets is unlikely to violate copyright laws. But copying the name or image of a person who wrote the tweet may violate right of publicity laws if you're implying that person endorses a product or service.
Tweet infringement? Legal experts believe that the vast majority -- if not all text tweets --  are too short (and lacking originality) to acquire copyright protection. (This article summarizes the theories). So, aside from potential right of publicity claims, you're free to copy them -- uhh, we mean "curate" them.  That's not to say that copying a tweet can't get you in trouble under copyright law. But you're more likely to get hassled if you tweet infringing pictures or movies, links to infringing content, or if you post a collection of tweets by someone.
What about the right of publicity? Obviously, you can retweet any tweets within the world of Twitter without any problem. But if you post the name or image of a person associated with a tweet in a commercial context apart from Twitter you need to do so in a way that doesn't imply endorsement or association. You might want to look at some right of publicity cases to get an idea of how the law works.
How can they do it? Your situation is distinguishable from a media outlet because your posts are considered commercial  -- that is, you're marketing a client's services or goods,  not reporting information. This may seem like an artificial distinction and the relevant law is not crystal clear ... but that's where things stand at present.