You’ve probably come across lyrics that would be perfect for your book. But can you use them? Song lyrics are protected by copyright law, and music publishers are notorious for protecting their songs. With that in mind, there are a few things you can do to potentially mitigate a publisher instituting a copyright infringement lawsuit against you.
Fair use is a defense to a copyright infringement lawsuit. Courts typically review four factors as to whether your use is fair. They look at why you’re using the lyrics, whether the work you’re taking is creative or factual in nature, how many lyrics quantitatively and qualitatively you’re taking, and whether your use is taking away any potential licensing markets from the music publisher.
Let’s assume factor two is against you given the creative nature of song lyrics (courts tend to favor taking from factual works rather than creative works). Now let’s look at the other three factors: how/why you use the lyrics, the amount you take, and if you use the lyrics commercially.
If you use lyrics in an academic book, that is likely a favored purpose; however, using lyrics to set the scene in a novel likely won’t be favored. In addition, analyze whether your use is transformative. Are you adding new utility or meaning (like analyzing lyrics in an academic book) or are you simply copying and pasting the lyrics into your novel? Next look at how much you’re taking. Is it one line or half the song? Regardless one line may be too much if it’s the heart of the work (for example, a popular refrain). Finally, analyze whether you’re using the lyrics in a commercial work. Are you writing a novel or a textbook? Context matters.
There are no guarantees. Fair use is determined on a case-by-case basis, so the only real way to know if a use is fair is if it goes to federal court. If you want to avoid it, be cautious and call a lawyer.
Songs published in 1925 have now entered the public domain, so anything released in 1925 and before is free to use.
Song titles are not copyrightable, so they are free to use. However, make sure that the song title is not trademarked. If you’re using a famous song title as the title of your book, you’ll be hearing from a band’s lawyers.
Phrases commonly used in everyday life that happen to be lyrics may also be okay. For example, having your character reply “I know” likely won’t mean you’ll get sued by a musician who sings those words in their song.
Please be advised that the information contained in this blog is for information purposes only and does not constitute legal advice. Parties seeking legal advice should consult with legal counsel familiar with their particular circumstances.
Joseph Perry is a publishing attorney and literary agent at The Law Offices of Joseph J. Perry, P.C. and Perry Literary, Inc. respectively. As an attorney, Joseph counsels clients in the publishing industry, where among other things, he drafts, reviews, negotiates various publishing agreements, and conducts pre-publication review of manuscripts. As an agent he represents bestselling cookbook authors, athletes, musicians, journalists, influencers, academics, and more. You can reach Joseph at JosephPerryLaw.com or PerryLiterary.com. Joseph obtained his Juris Doctor from St. John’s University School of Law and a Master of Arts and Bachelor of Arts in English from St. Bonaventure University. He is a graduate of New York University’s Summer Publishing Institute.
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