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 …”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. 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:

1. You can freely use song titles, but not lyrics. Often, the title alone is enough to evoke the emotion or association you are seeking.
2. 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.
3. 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.