By Dorian Box
In a previous post, I briefly discussed the interaction between the “fair use” exception to the U.S. Copyright Act and the use of song snippets in works of fiction, but wanted to conduct a more in-depth legal analysis of the issue.
The fair use exception to copyright laws is designed to promote free expression by allowing portions of copyrighted works to be reprinted in other works without having to get permission. But when it comes to novelists using bits of song lyrics, the legal advice you’ll find in blogs and the like is clear and consistent: DON’T DO IT. Never, no exceptions, forget about it—unless you get permission, of course. But good luck trying to do that, especially if you’re an indie author with a limited budget.
As a musician and music lover, I believe strongly in the power of songs to creatively capture a feeling, scene, mood or era. Songs leave indelible impressions on us. How often do you hear a song and instantly associate it with a moment or period of your life? In my first novel, Psycho-Tropics, I included enough song references to compile a playlist on Spotify. (Titles only, which is permitted.)
While the conventional advice is definitely the safest path for writers, I disagree with it as a matter of law. Basically, it translates to an argument that the fair use doctrine does not apply to songs, which isn’t true. There is no statute or judicial opinion that says anything like: “The fair use doctrine applies to every type of copyrighted work except songs.” In fact, I have been unable to find even a single court case where a fiction writer was held to have infringed on a song by quoting a lyric from it.
Let’s see where a legal analysis of the issue takes us:
The Fair Use Exception
Section 107 of the Copyright Act states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” I would assert that use of song snippet in a novel makes a “comment” about the song, but note also that the listed items are not exclusive. Section 107 offers them only as examples (“for purposes such as …”).
Section 107 then goes on to list four factors to be used in determining “whether the use made of a work in any particular case is a fair use …”:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Applying the Fair Use Exception to Quoting Song Lyrics in a Novel
First, let me be clear that, as elaborated on below, I’m arguing only for a fair use right to borrow a small portion of a song lyric, maybe one line or fifteen words, in a substantial work of fiction. (Standard disclaimer: This is all my opinion, not legal advice.)
Factor 1: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Most indie novels are of a commercial nature, but only in a theoretical way. In any event, the fact that a work is commercial in nature does not automatically prevent application of the fair use doctrine.
In commenting on this factor, the U.S. Copyright Office says “transformative uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”
It is hard to imagine a more transformative use of a song lyric than quoting it in a substantial work of fiction. Novels, by definition, “add something new.” They have a different purpose and character than the song and certainly “do not substitute for the original use of the work.” To test this assertion, hold a novel to your ear and rustle the pages. Not quite the same listening pleasure.
Factor 2: the nature of the copyrighted work
On this point, the U.S. Copyright office says: “This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item).”
Fair enough, but as acknowledged in the quoted language, novels and songs are both creative and imaginative works. Fiction has been a prominent form of creative expression since the twelfth century. So applying this point too strictly would risk suppressing creative expression in one type of work (novels) to protect another (songs).
Factor 3: the amount and substantiality of the portion used in relation to the copyrighted work as a whole
Obviously, quoting a lot of something is more infringing than quoting a little bit of it. As a rule of thumb, the longer the work quoted from, the greater the liberty to quote more words under the fair use doctrine.
Here we see a major sticking point regarding quoting song lyrics. Unlike a book or in-depth scholarly article, songs tend to be short. One writer offers that the average hit song is 491 words, although many are significantly shorter and many are significantly longer. The heavy metal rock anthem of the sixties—In-A-Gadda-Da-Vida by Iron Butterfly—has a running time of more than 17 minutes, but only 30 unique words, while Eminem’s Rap God tops out at 1560 words.
Although such a rule in unlikely to be forthcoming, it would be nice to have a fixed standard, such as a certain percentage of a work or a certain number of words. Absent that, I’d again argue that one line or up to ten or fifteen words would be a fair and reasonable amount in relation to the whole of a song.
Factor 4: the effect of the use upon the potential market for or value of the copyrighted work
This factor helps make the case that quoting a small piece of a song should be protected as fair use. The purpose of copyright law is to protect the copyright owner’s ability to exploit their work. (Sadly, in the case of songs, the copyright owner is often not the songwriter, but a corporate music publisher or even a private equity fund — just ask Taylor Swift.)
Under this fourth factor, courts look will look at “whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.”
Using one line of a song in a novel surely does not affect the market for or value of the song. No one who likes a song is not going to buy or listen to it because they were sated by reading one line of it in a book. The opposite is more likely: if used effectively to evoke a feeling or memory, readers may be more likely go out and find the song.
The Dreaded Cease and Desist Letter
As mentioned, I was unable to find any cases where a fiction-writer was held liable for infringing a copyright by reprinting a song lyric, but in truth, there is little law on the subject. If the copyright owner notices the borrowing and cares about it, their lawyers will fire off a threatening cease and desist letter to bully the author into submission. It’s easier to cave than litigate.
Mike Masnick of TechDirt.com recounted an incident where a young writer and Grateful Dead lover, penned a novel in which she opened each chapter with a Grateful Dead song lyric. Commenting about how copyright law is frequently used to hold back creativity, Masnick describes how the publishing arm of the Grateful Dead (ironic, given that the Dead are beloved in part because they always allowed fans to tape and share their shows) pressured the writer to change her book under threat of litigation.
Masnick said “it’s difficult to see what legal ground Ice 9 and the Dead have to stand on here. The use of these lyrics hardly harms the commercial potential of the Grateful Dead—and, almost certainly increases it.” His conclusion was that the incident was “yet another unfortunate example of copyright holding back creativity, rather than encouraging it.”
Tips for Writers
Here are a few tips for novelists who want to use song references for creative purposes in their works of fiction:
- You can freely use song titles, but not lyrics. Often, the title alone is enough to evoke the emotion or association you are seeking.
- The folks telling you to never ever use even a snippet of a song lyric without permission are giving you the safest advice to follow.
- You may be able to accomplish the same goal by taking an end around and not using actual quoted lyrics. Here’s an example. In The Hiding Girl, the first book in the Emily Calby Series, the protagonist is the lone survivor of a terrible home invasion. Among the many obstacles she faces is her own disintegrating psyche. At one point, she’s fleeing a traumatizing crime scene and has begun to dissociate:
I roll my shoulders, stress bones crackling, and turn on the radio, scanning until I find a country station. Waylon Jennings is singing that being crazy kept him from going insane. Haha, I don’t think it’s working for me.
The reference is to Waylon’s classic, I’ve Always Been Crazy.
If You Decide to Take the Risk …
In 2018, there were 1.6 million self-published books and that’s not even including Amazon Kindle e-books. Realistically, insubstantial lyric quoting is likely to go unnoticed in most cases in the exploding self-publishing world and, even if noticed, copyright holders don’t have unlimited resources to go ever every possible offender.
If you opt to take the risk and use a lyric, cut the number of words to the absolute minimum necessary to evoke whatever it is you’re trying to evoke. Definitely never use more than one lyric line. Even better, stick with using only a part of a single line, a fragment.
Don’t ever use a song lyric in a way that disparages the song or artist. That might encourage the artist or other copyright holder to take action when they might otherwise let it slide.
Finally, understand that you’re always taking a legal risk in the unsettled world of using song lyrics in fiction.
IP rights holders depend on the fact that they have deeper pockets and better paid lawyers to bully people into submission (as you noted above). I wish a name author with the deep pockets to litigate the case would quote a song lyric and fight the D&C all the way to a verdict.
I also wish I had a billion dollars and perfect health, but that ain’t happening either.
I totally agree on both points!
James Scott Bell linked your article to his post today on The Kill Zone.
While your arguments are logical, well-presented, and valid, the sad reality is the cost of defending oneself–even if successful–is far more expensive than most indie authors can afford.
I don’t want to take that chance because…
“Them that’s got the gold makes the rules.” – Murphy’s Law
Your article intrigued me enough to check out The Hiding Girl. Read the sample and bought it. Great story concept, well executed.
Hi Debbie – First, thanks so much for buying, reading and especially liking The Hiding Girl! What you say is true, but as someone else commented, it would be cool if someone with deep pockets would turn the tables and take them to the mat in one of these cases and establish favorable precedent for fiction writers, which I think is a very possible outcome. If a major copyright holder thought that was going to happen, they might be the ones to back down. Dorian
Safe to say then…a writer may use a song title….but never follow with any lyrics…which is an absolute no-no!
Hi Teresa – That’s definitely the conventional wisdom and safest path to follow, but I still think it’s inaccurate as “legal rule”.
If you absolutely have to quote a lyric, stick to songwriters who are socially conscious and generous to others – they’re more likely to let it slide.
That’s probably true, although hard to predict. But along with that, if it’s you’re using the lyric in a way that reflects positively on the song/artist, that could help too. (Interesting side note: In working on a middle-grade book, I’ve been reading many of them, including a 2019 title published by a HarperCollins imprint that contains several song lyrics without any indication they were permissioned.)
I’m still learning about copyright and know very little thus far. But does the songwriter actually have a say whether to go after someone or not? Or is the publisher or the entity who owns the song? It’s so convoluted and ripe with possible gotcha moments, it really does dampen creativity.
I’ve seen a countless number of websites that have lyrics on them… They are built exclusively to make money. I’ve even seen lyrics databases for sale online. How are they getting by with it?
I appreciated the comment that they can’t go after everyone… and statistically if you use a snippet of a lyrics, chances are good it will fly under the radar… but it’s still unnerving.
I’ve had nasty letters from lawyers over using copyrighted images in blogs or websites… and these were images that I supposedly “bought” or “licensed” from legit places.
If you’re creative, it’s almost to the point you need a staff of IP attorneys on standby to keep you from messing up something.
I hope it’s OK to comment, I know this is an old post. I found it while searching whether you can legally publish lyrics.
Sorry for the delayed reply. Unfortunately, the songwriter has no say in it unless they own the rights to the song, which they too often don’t. And of course the latest trend is the mega-songwriters who do (or did) own the rights to their songs selling their entire catalogs to investment groups. This includes giants like Bruce Springsteen, Neil Diamond, Sting, David Bowie, Neil Young, Bob Dylan … To get permission, you have to track down who owns the rights. This blog post had a discussion of how to do it. https://lawschoolheretic.com/2019/05/08/how-to-get-permission-to-use-song-lyrics-in-your-books/
The problem with that approach is most songwriters don’t own the rights to their work.
The songwriter may be, but the music label who holds the copyright most likely is NOT.
I wonder whether the rules are more flexible when using parts of a song (4-6 lines) in an educational book. I am writing a language book (to teach English to foreigners) and I am including song lyrics in the exercises, with some words missing, and I’m asking the students to fill in the blanks. So it is definitely for educational purposes, but I want to make money from the book, so it is for-profit. I cannot find much information on this case and I wonder how safe it is.
May I add that I haven’t been able to find any information at all on the use of foreign lyrics. If I publish a French instructional book here in the US, and I use lyrics from French songs, will the French composer or his French record company go after me? I asked a lawyer and he had no idea what happens in these “cross-border” cases. It’s frustrating.
I’m not an expert on international law, but yes, I’m sure they could. They might even be able to after you in France and make you litigate there. Globalization of the economy creates all kinds of headaches and pitfalls for speech that crosses international borders.
Fantastic article! I absolutely loved the insights on Song Lyrics in Fiction and Doctrine. Your detailed explanations and practical tips are incredibly valuable. Thank you for sharing such a well-crafted and informative piece!
That sounds like a great idea and a fun way to learn! However, while there may be more leeway to use song lyrics in nonfiction educational books, they are generally works “for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research” (language from the Copyright Act). An author who is writing a scholarly book using song lyrics sent me a PDF of a helpful 2017 book you might want to look into: Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (by Brianna L. Schofield & Robert Kirk Walker).
I found your article while searching for advice on reprinting song lyrics in a NON-fiction book. I am interpreting and commenting on the lyric. I can’t really find any direct advice about this on the internet, but, in passing you seem to suggest that my usage does fall under fair use:
“the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.”
So, realizing that you are not giving official legal advice, would you say that non-fiction authors do not need to worry about obtaining permission for quoting song lyrics?
Sorry for the delayed reply. No, I definitely wouldn’t say that! Depending on the nature of the book, there may be more leeway to use song lyrics in nonfiction, especially if it’s a scholarly work. An author who is writing such a book sent me a PDF of a very helpful book you might want to look into: Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (by Brianna L. Schofield & Robert Kirk Walker).
Would acknowledging the lyricist in the text of the story and additionally in the frontpiece acknowledgements be additional protection?
Not as a legal matter, but it might influence the rights owner in deciding to pursue the matter, depending on the extent of the usage.
I loved reading your reply on fair use.
I am a small time author with five books on Amazon. Imake less than $500 yearly on sales and KDP pages read.
I am working on a story about a character named Eleanor RIGBY . In the story as a spoof I refer to countless Beatle song titles. Is this permitted. TJ Hannon
Hi Tom – Can’t give legal advice, but in general the use of song titles is permitted. Also, parody is part of the fair use doctrine, so depending on your work, you might find some protection there. Dorian