You won’t catch me writing a songfic

I know how to write a songfic. More than one song has caught my attention and set me plotting. But quite aside from the annoyance (mine, YMMV) of stopping the narrative flow for some lyrics every few hundred words, that kind of story is a landmine waiting to detonate.

Some songs are in the public domain. I used a pibrocht with words for O’Carolan’s Seduction, because I wanted Steven to get a message across to Hugh. The traditional piece dates back to the 1700s and is most certainly out of copyright. Steven sings a few lines in a session and then the narrative moves on; thus not a songfic. Let me do a little more editing and I’ll put the story back up so you can see what I mean.

Song lyrics are subject to copyright just the way books and short stories are. Someone holds the rights, and if you want to include all or part of the words in your fiction, you have to get permission. Titles can’t be copyrighted (a good thing or Edward Abbey’s literary executor would be having a few words with me, and you can bet I checked before ever submitting Fire on the Mountain) but the words are. The way to find out if you can use lyrics is by asking, and you must abide by the “no” if the terms can’t be met. Depending on who holds the rights, they might be anything from thrilled at the thought of being quoted to willing should your pockets be deep enough.

“Deep enough” can be pretty deep. The Rolling Stones think Coca-Cola and Microsoft have enough spare change to pay their price for commercial use, and they’d have to defend their copyright vigorously to make it worth the behemoths’ while to pony up for the Stones’ brand.

Which means that any stray author who thinks quoting part or all of a Stones song is courting trouble. Sure, the use may fly under the radar for quite a long time. Then again, it may not.

It doesn’t have to be a band as big and well-known as the Stones to make unauthorized use of lyrics unacceptable. It’s hideous irony for an author to want copyright and yet not respect it when it belongs to someone else. “Because I want it” is not a valid reason to trample on the intellectual property rights of others.

Tradpub keeps tame lawyers around to keep them from stepping into this sort of mess. One aspect of self-pubbing is that you have to do your own due diligence. The information isn’t hard to come by–if you don’t have an IP attorney in your hip pocket, there are still plenty of authors’ sites which discuss the issue. It’s pretty unanimous–Don’t quote, unless you have the permissions and license.

I’ve seen contracts from several small presses, and they all make it clear that if you cost them money by using something you don’t have rights to, they’ll come back at you. They might have been thinking of fictional universes, but song lyrics could fall under that umbrella too. This is one case where the ounce of prevention is easy, and the pound of cure could be ruinous.

I had to dig up references for a bit of doggerel for O’Carolan’s Seduction showing the poem that drove Hugh into the kitchen had been recited as traditional a hundred years ago. When I needed lines from ‘In Flanders Fields’ for Blood on the Mountain, I included the author’s name and date of death. (US copyright extends through author’s lifetime plus seventy years.) Offering the information to my publisher before they asked showed I didn’t intend to put them at risk.

Amazon takes a very dim view of copyright infringement. Their terms of service don’t make any secret of this–the issue appears several times. And if you do it anyway, the terms are such that you don’t profit from it. This is from the the publishing agreement I and every other other indie author bound ourselves with when we published through Amazon. The red is mine, and what I consider the most important bits.

5.4.7 Offsets, etc. We can withhold Royalties and offset them against future payments as indicated below. Our exercise of these rights does not limit other rights we may have to withhold or offset Royalties or exercise other remedies.
If we pay you a Royalty on a sale and later issue a refund, return, or credit for that sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us.
• If a third party asserts that you did not have all rights required to make one of your Digital Books available through the Program, we may hold all Royalties due to you until we reasonably determine the validity of the third party claim. If we determine that you did not have all of those rights or that you have otherwise breached your representations and warranties or our Content Guidelines with regard to a Digital Book, we will not owe you Royalties for that Digital Book and we may offset any of those Royalties that were previously paid against future Royalties, or require you to remit them to us.

5.7 Rights Clearances and Rights Dispute Resolution. You will obtain and pay for any and all necessary clearances and licenses for the Digital Books to permit our exercise of the rights granted under this Agreement without any further payment obligation by us, including, without limitation, all royalties and other income due to any copyright owner.

5.8 Representations, Warranties and Indemnities. You represent and warrant that: (a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement; (b) prior to you or your designee’s delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement; (c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction; (d) you will ensure that all Digital Books delivered under the Program comply with the technical delivery specifications provided by us; and (e) you will be solely responsible for accounting and paying any co-owners or co-administrators of any Digital Book or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable under this Agreement. To the fullest extent permitted by applicable law, you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.

There’s more but it’s a bit dry to read, and this covers the salient points. Basically, you get your ducks in a row, and if you don’t, it’s your problem, not Amazon’s.

There’s a fair amount of weeping and gnashing of teeth going on around the internet right now regarding a very popular book, discussing returns and money coming out of the author’s pocket. Whatever the original prompt for the flap was, I couldn’t say, but copyright infringement is an issue with it now, and these are the rules she agreed to follow and remedies if she didn’t.  TL:DR isn’t an option for a legally binding agreement.

And if you find lyrics in any of my works,  the song is likely older than you and me put together.

 

9 responses to “You won’t catch me writing a songfic

  1. This is why I didn’t quote any Jim Croce lyrics in Acceleration (though, seriously, listen to I Got A Name and tell me that’s not THE Derrick song.) In fact, when I did my guest post on the music of Acceleration over at Eden Winters’ blog, I didn’t quote the lyrics in the post, because my research said that the same rules apply to blog quotes about getting permission from whoever holds the license. I inquired at the company that holds the rights to Jim Croce’s music, but I never even got a response to my inquiry.

    I recently read a title that used some lyrics from Madonna and Lady Gaga and my eyebrows went up because I didn’t see the copyright statement on the front matter anywhere saying they had permission.

    I DO however have a book in the pipeline that will use a few snippets of song lyrics (no, not songfic, either) for which I’m very thrilled. The artist is an independent singer/songwriter who holds all his own copyrights, and he just happens to be an old high school friend of mine. I’ve appeared on-stage in choir and musicals with this guy, So! Needless to say, I got permission all legal-like and everything! 😀

  2. georgeindenver

    Nice exposition of the issue, but lacking in any discussion of “fair use.”

    • George, I didn’t cover fair use because to the best of my knowledge, it doesn’t apply here. It’s not critical, it’s not educational, and it is for profit. And I wouldn’t even argue for it with a group known to eviscerate what they perceive as infringers. A band known as Verve ran afoul of them for sampling “too much” in a song where they’d obtained a license to use samples, and lost hugely. I can talk about that in a different post. This one ran pretty long as it was.

  3. http://janefriedman.com/2012/01/23/permissions/

    “Song lyrics and poetry

    Because songs and poems are so short, it’s dangerous to use even 1 line without asking for permission, even if you think the use could be considered fair. However, it’s fine to use song titles, poem titles, artist names, band names, movie titles, etc.”

    Fair use covers four criteria, two of which largely would apply to a fiction author: is the use for profit, and is it a substantial portion of the work. If acceptable fair use is ~300 words of an entire novel, what do you think, proportionately, 2-4 lines of a 30 line song would be?

    Maybe you could get away with it, maybe not. The music industry being as litigious as it is, it’s a game of Russian Roulette where the gun’s loaded with a tens-of-thousands-of-dollars lawsuit. Fire at will.

    • Thanks for hunting that up, Amelia. If Jane Friedman says it’s Russian roulette, I’d believe her. Will also check Passive Guy’s blog. He’s an IP attorney and knows whereof he speaks.

      • LOL well, I quoted that badly. Only the first paragraph in quotes is Jane Friedman’s. The Russian roulette editorial remark is my own. I’m still not gonna pull the trigger, though.

  4. I used to think like you, then I discovered inspiration in the lyrics of a song from Silent Hill 3, so I found a way to write and publish it legally. Check it out!

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