Every now and again a horror story pops up on the internet about an author who has out of the blue received a demand for a huge sum of money for having quoted a song lyric in a book. British indie author Jonathan Westwood, who describes himself as “a recovering lawyer”, shares some helpful and interesting perspectives on this very grey area. (Just checked that I'm allowed to say “Out of the Blue”, as that's the title of a Roxy Music song!) Over to Jonathan…
I only want to see you laughing in the purple rain.
That’s what the t-shirt I’m wearing says. It’s also, of course, a line from Prince’s song “Purple Rain”.
My t-shirt is not official Prince merchandise. In the days after Prince’s death, some enterprising soul designed it, advertised it and sold it for profit. As far as I’m aware that person is not currently serving a spell at Her Majesty’s pleasure. But according to accepted wisdom in literary circles, I’ve committed an unspeakable heresy by using that line of lyric without permission and/or paying Prince’s estate a licence fee.
Well, like Prince said in the intro to “Let’s Go Crazy”, “I’m here to tell you: there’s something else.”
When someone on the internet pontificates about legal matters without knowing what they’re talking about, they’ll often caveat their comments with the unfortunate acronym IANAL – I Am Not A Lawyer. I can’t hide behind IANAL because I spent 22 years studying, training and practicing as a solicitor. So in my case it’s IANALA – I Am Not A Lawyer Anymore.
As such, this post does not represent formal legal advice and if you’re daft enough to rely on its content, on your own head be it.
Copyright Protection of Lyrics
In most countries, most artistic works – including most song lyrics – are protected by copyright. Thus, for a period of time, usually the artist’s life plus 50-100 years, the artist has the exclusive right to determine how and when her art is used or copied.
Song titles, conversely, don’t qualify for copyright protection, so if you want to call your next novel Bohemian Rhapsody to cash in on that lucrative Václav Havel/George Gershwin/Freddie Mercury fan base, knock yourself out.
But copyright isn’t absolute. There are exceptions when the use of a copyrighted work doesn’t need the artist’s consent – these often include things like use in education and reportage.
The relevant exception for authors is called “fair use” (in the US) or “fair dealing” (in the UK and most Commonwealth countries). The two concepts operate differently but, as a broad generalisation, they allow you to use some – a “fair” amount – of a copyrighted work without consent in certain circumstances.
In the UK, the extract used must not constitute a “substantial part” of the original. If, for example, I want to illustrate a point by quoting 300 words from a copyrighted 75,000-word book, that will usually qualify as fair dealing. Usually, but not always: nebulous concepts like “fair” and “substantial” are what keep lawyers fat and gout-ridden.
A lyric is usually quite short, so it wouldn’t take the use of many words to rub up against the “substantial part” test.
When is a Lyric Not a Lyric?
But it has to be more than just a couple of words or a phrase. If one of my characters talks of “all my troubles” and another says that someone “died in the church”, have I ripped off Sir Paul McCartney’s lyrics for “Yesterday” and “Eleanor Rigby”? Or am I just using simple, common or garden phrases? The answer’s the latter, of course.
I don’t believe the use of one line of a lyric will ordinarily be considered any more unfair than extracting 300 words from a book. Credit your source – as you would a book excerpt – and I believe you’ll stay on the right side of the fair dealing line the vast bulk of the time.
I’m not suggesting pilfering Freddie Mercury’s whole lyric for the book Bohemian Rhapsody. But I’m confident the character Bismillah the ballroom dancer could ask, “Scaramouche, Scaramouche: will you do the fandango?”
Practising What I Preach
And I’m going to put my money where my mouth is: my forthcoming novel Something Changed features a character whose primary source of emotional vocabulary is song lyrics. He speaks lines from dozens of songs. And where he uses one line, I’m neither seeking consent nor paying a licence fee. I’ll acknowledge every song used, and their composers, and link to a Spotify playlist where my reader can listen to the songs while the writers earn a royalty.
On the couple of occasions my character uses more than one line from any given song, I’m seeking permission and unless it’s silly money I’ll pay a licence fee. If I can’t get permission or can’t afford the licence fee, I’ll change my text. If you’re thinking of using lyrics in your book and want a free copy of the clearance request letter I’ve been using, please visit jonathanwestwood.com/copyright-clearance-letter.
Despite my legal background, I don’t want to end up in court. Especially as I know that, in legal disputes, the side with the deepest pockets usually prevails.
If you have an army of lawyers paid by a music publisher threatening all manner of unpleasant outcomes if their client isn’t given money going up against an author whose sales figures put her below the poverty line, The Suits will invariably browbeat the author into submission. Outside legal practice, this is called bullying.
If you doubt music companies would behave like this, remember that in recent years they’ve sold 22 million CDs that infected buyers’ computers with malware and sued or threatened to sue 35,000 individuals, including the homeless, children and dead octogenarians.
Meanwhile, music publisher Warner/Chappell coerced people into giving it £1million each year to use “Happy Birthday To You” on the basis of a non-existent copyright it claimed to own. Warners had the deepest pockets with which to instruct the nastiest lawyers to bully lesser mortals for 25 years – until documentarian Jen Nelson challenged Warners’ demand that she must pay $1,500 to use the song in a film she was making. After a long legal battle Warners conceded, accepted the song is in the public domain and was forced to pay $14 million to people it had extorted.
But I’ve spent hours trawling legal databases and I’ve asked several other lawyers. I can’t find any record of this point ever having been litigated in England and Wales and every lawyer I’ve spoken to on each side of the Atlantic has agreed with my view that the use of a single line of a song lyric will not ordinarily amount to actionable copyright infringement.
“The Law is An Ass”
Something else to be borne in mind is that the law in this area is a total ass. The main act governing copyright in the UK is now 29 years old. I was sitting my GCSEs when it went through Parliament and most of the MPs responsible for the act are now dead.
Most importantly, there was no internet in 1988. There are now more than 1 billion websites and about 2.5billion social media accounts. A very large number of them infringe – deliberately or otherwise – the intellectual property rights of other people.
That pretty picture you liked and posted to your Twitter/Facebook/Instagram/Pinterest account(s) or used to illustrate a blog post? Well, the copyright in that photo almost certainly belongs to someone and, under a strict interpretation of the law, you infringed his copyright when you copied and published it without first getting his permission and/or paying him a licence.
In the Land Before Digital
In 1988 there was no YouTube, whose content is, by its founders’ own admission, 80% copyright-infringing material.
Google, YouTube (bought by Google in 2006) and the social networks have employed and enabled systematic copyright infringement on an industrial scale to build their businesses.
Search Google for the phrase “I only want to see you laughing in the purple rain” and there are 17,100 results. A search for “Purple Rain lyrics” brings back 487,000 results. Despite Prince having been an active policer of his music on the internet, a search of YouTube for “Purple Rain” yields a staggering 602,000 results.
If music companies policed their and their songwriters’ copyrights strictly and uniformly, the courts would be jammed with literally hundreds of millions of claims against YouTube and Facebook. The judicial system would collapse under the strain.
The reason that isn’t happening is because YouTube and Facebook have been allowed to grow at rate of knots to such a size that they have more money in their petty cash tin than all the music companies combined have in their bank accounts. So music companies go after the softer targets who can’t, won’t or don’t fight back.
The Truth about Lawyers
Let me shatter an illusion: sometimes lawyers don’t tell the truth, the whole truth and nothing but the truth.
(I know: I couldn’t believe it either.) When it suits the purposes of the client paying them several hundred pounds an hour, lawyers won’t exactly lie but they will deliberately allow other people to draw inaccurate conclusions. And many lawyers will happily litigate specious claims as long as their client keeps paying their bills. (That’s called barratry – a criminal offence in the UK until 1967 and still illegal in the US.)
This is why literary circles run a mile from the use of song lyrics.
Over the years, just like Warners with “Happy Birthday To You”, music publishers’ lawyers have consistently threatened book publishers with litigation. And the book publishers haven’t had the money or the stomach to stare the lawyers out.
In fairness, this is a grey area with no hard and fast rules – but that’s in part because no book publisher or author has ever apparently litigated the point.
Don't Sue Me…
I don’t want to litigate it myself but I’ve never been dissuaded from doing something because people tell me, in the words of Bruce Hornsby and the Range, “That’s just the way it is.”
If you don’t want to risk receiving a lawyer’s letter or a claim form, then don’t use any lyrics at all. That’s the risk-free approach. But if you’re considering using lyrics in your book, ask yourself two questions:
- Will your use of that lyric cause the copyright owner to lose revenue?
- Is the amount of the lyric used reasonable and appropriate?
If the answer to 1 is no and the answer to 2 is yes, then your use of the lyric is highly likely to be considered fair.
And with that I’ll say, “Goodbye, everybody. I’ve got to go. Got to leave you all behind and face the truth.”
Admit it: you really want to read the novel Bohemian Rhapsody, don’t you…?
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