by James Scott Bell
A question I’m asked from time to time is about whether or not an author can quote a song lyric in a novel.
If you browse around the internet you’ll find almost universal agreement with this answer: No, you cannot quote a song without getting permission and paying a fee. Hard stop.
Actually, soft stop. The correct legal answer is—as in your first love or first attempt at a tax return—complicated.
The issue is whether a song—which is of course copyrighted material—is subject to the “fair use doctrine” just like other works, such as books. Fair use allows for a small portion of a work to be used under certain circumstances.
So the first thing to note is that there is no statute or court decision that exempts song lyrics from fair use. Zip.
…the rules for applying “fair use” are about as clear as Mrs. Murphy’s chowder after the overalls have been tossed in. (Astute readers will recognize that I have just paraphrased a line from a song made popular by Mr. Bing Crosby. On the practice of paraphrase, see below).
So let’s take it step by step, for as Lennon and McCartney once put it, we must travel a rather long road that is winding. (Paraphrase!)
Here I must add, disclaimeringly, that this does not constitute legal advice (yadda-yadda). Take it as opinion, because unlike Billy Joe and Bobbie Sue in the Steve Miller song, I’m not anxious to take your money and run.
Fair Use Doctrine
In short form, the Fair Use Doctrine allows for quoting copyrighted material, based upon four factors:
(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.
Courts have held that all of these factors must be taken into consideration, with no single factor carrying greater weight than the others. It all depends on the specific facts of the case—and on who gets to decide. It’s not clear whether a jury or a judge should be the fact finder (if you’re interested in a scholarly analysis of this issue, you can read this).
So any way you look at this area of law, you’re going to see murk.
A Hypothetical Case
Joe Doakes writes a novel about a rock band whose lead character likes to sing a line from a famous song every now and then. Joe is an indie author, and up goes the book.
Six months later he gets a cease-and-desist letter from a lawyer for the company that handles licensing the song. It states, in effect, Don’t you realize you have to pay for this? Withdraw the book now and pay us $1500 and we won’t take you to court.
Joe consults a lawyer friend, a rock drummer on the side, and true to his rebellious nature the lawyer says, “Let me write a letter for you, and I’ll handle this pro bono.”
The letter goes through each of the four fair use factors, and concludes: The most compelling factor is the effect of the use upon the potential market for or value of the song. That’s because far from causing you damage, the use is to your financial benefit. It’s free advertising. The lyric is quoted in a favorable light. If anything, this will lead to a portion of readers wanting to purchase or stream the song. Further, as the lyrics of the entire song are widely accessible on the internet, there is no possible way the use of one line in this book will affect the market or value in any way whatsoever. Respectfully yours, Joseph Doakes.
Now the company will have to decide if they want to pile up in-house lawyer fees to tangle with this guy Doakes. Doakes is taking a risk, of course, but he’s willing to do it. He’s a rocker, after all, and one of the things he likes to rock is boats.
It would indeed be interesting to finally get a court decision on this. The argument for fair use is strong, in my humble opinion. But litigation is fraught with uncertainties. Isn’t there another way? I’m glad you asked.
The Paraphrase Workaround
Joe Doakes can avoid the grinder of the courts by way of what I call “the paraphrase workaround.” Examples:
As I drove toward the police station, a song came up on the oldies station. Stevie Wonder was singing about the sunshine of his life and the apple of his eye. I loved that song! But all I could think of was the darkness in my own life and the dead body in my trunk.
As I drove toward the police station, a song came up on the oldies station. The Beatles were singing about going down to fields of strawberries, where nothing was real. Ha! I wished I could go those fields right now, because there was a very real dead body in my trunk.
No muss, no fuss. And, most important, no lawsuit.
Okay, so what if you really, really, really want to use the exact lyric? You can seek permission to quote, for a fee. How hefty that will be is also uncertain, because a company can charge whatever it wants to. I once got permission to quote an entire song, for a reasonable price. The conditions were that the use not be derogatory and that the front matter include their standard permissions language. Done and done.
But I’ve also seen outrageous fees for a single line. Should that happen to you, you can always try to negotiate. Or get Joe Doakes’s lawyer to do it for you.
(A helpful article on how to find who grants licenses for particular songs can be found here.)
One last note. Any song written before 1927 is now in the public domain. More come in each year. So how about this?
As I drove toward the police station, a song came up on the oldies station. Elvis!
Are you lonesome tonight? Do you miss me tonight? Are you sorry we drifted apart?
Yeah, I was lonely all right. But was I sorry we drifted apart? Was I sorry he was dead and in the trunk of my car? Um, no.
Wait, what? Elvis sang this in 1960. Yeah, but the song was published in 1926. You can now use it any way you please. (You can search for songs in the public domain here.)
This is a lot to digest, I know. But when you’re dealing with copyright law, contra Paul Simon’s advice, you really can’t think too much.
I’m a paraphraser. Queen was singing about wanting it all, I believe is how I referenced it in a book. My editor questioned a character saying if you need a friend when characters were listening to Bridge Over Troubled Water even though that phrase seemed ‘normal’ enough for people to be using. However, the published version says “I’d like to be that for you. Your bridge.”
A lot also depends on what/who you’re quoting, I think. Don’t mess with Disney. Ever.
Congress may be messing with Disney after November. There’s a bill prepped that would take away the copyright extension Disney got back in the day…putting Mickey immediately in the public domain. It’s due to happen anyway in 2024, and the way things are going it doesn’t look like another extension is in the offing.
Disney has been using Steamboat Willy, Mickey’s first appearance, as part of their opening images in recent movies along with Cinderella’s Castle, etc. That means it’s now trademarked on top of being copyrighted. No one will be able to touch that.
The trademark issue has not come up yet, as copyright is the current line of defense. When the copyright expires I expect to see a court case, not involving an individual author or artist, but another company.
Good morning, Jim.
“It all depends on the specific facts of the case—and on who gets to decide.” That “who gets to decide” part scares me.
I wanted to use just the first two lines of a famous song sung by seven dwarfs in a Disney movie as they’re on their way to work. I wrote to the company that owns the copyright (if memory serves, it isn’t Disney,) and they refused to let me purchase the right to use the lyrics! So I made up my own, sung by a software developer who’s looking for an evasive bug:
A bit, a byte
I’m working day and night.
I’ll get you yet
My little pet.
I’ll put a bit into your byte.
I like my version better. And if Disney ever tries to use it, …
Disney owns the copyright to everything Disney. They have a separate company to handle the licensing arrangements.
Make up a song is a great move, Kay. Mad Magazine used to do satire all the time by making up lyrics “sung to the tune of…” Frank Jacobs was their genius who did the lyrics, which always scanned perfectly.
Like their send up of West Side Story: East Side Story (about communists in the 60s), and this song, sung to the tune of The Jets Song:
When you’re a Red
You’re a Red all the way
From your first Party purge
To your last power play!
When you’re a Red
You’ve got agents galore;
You give prizes for peace
While they stir up a war!
You set off a test,
And when you’re halfway through it–
You point at the West
And say they drove you to it!
That’s how you do it!
We are the Reds … With a punch in the face … Which we’re aiming today … At the whole human race … At the whole–! Ever–! Trusting–! Human–! Race!
Something in common with Mad Magazine? Makes me “Feel Good” (like James Brown.) 🙂
Thanks, Jim. I advise anyone who asks to use the paraphrase workaround. Any corporate entity with the money to own rights to a song composition (or thousands of them) usually has the money to bury an independent author and his solo practitioner attorney under an avalanche of cease-and-desist orders, actions, and motions. Paraphrasing is easier and, I find, more interesting.
Kay, I’m not surprised that Disney said no. Disney always says no.
Have a great Memorial Day weekend, everyone!
Still, it would be nice to see a David take on Goliath…I’m not so sure a company would be anxious to take this all the way and see an industry-wide precedent set.
But yes, it’s so much easier to paraphrase and relax.
I haven’t had cause to quote a lyric yet that i know of, but it’s good to know. And thank you for the link for where to search what’s in public domain. I like your idea of paraphrasing instead.
Legal mumbo-jumbo is a necessary part of life to protect all parties, but it sure is a pain in neck. 😎
Wanted to add: that website to look up public domain music would also be a fun creative brainstorming exercise. I picked a letter of the alphabet to scroll through public domain titles under that category and sometimes just the titles alone make your brain start buzzing with potential story questions and what ifs. A cool creative exercise when your idea well is dry & you’re looking for that next bit of inspiration.
There are a TON of great old songs out there now, BK.
I mentioned getting permission for a whole song in a previous book. I am revising that book for republication, and instead of paying for new permish for a 1934 song, I found a 1921 song in the database that works just as well.
Not to mention great literature and books in the public domain.
I used a few short song lyrics in my debut (Tim McGraw’s Don’t Take the Girl). Highly copyrighted. Thankfully, my editor red-lined them out and saved me a lot of headaches. I’ve stayed away from songs ever since. They only time I mention a song is when it’s used as a ringtone. Example, her phone belted out You Oughta Know.
Right, Sue. Titles are fine. And you bring up a good tip: a ringtone can tell us a lot about a character.
Great post, Jim. You did a fine job illuminating an area that has been murky in my own mind.
I’m also a fan of the paraphrase work-around. Not only does it avoid any potential legal entanglements, it lets the me give my own character’s rendition of the lyrics, another place in the narrative where I can characterize them.
Have a great Sunday!
Exactly right, Dale. The song should give us a clue to the character’s personality, or indicate what’s going on inside the character at a crucial point in the story.
Thanks for the advice, Jim. I’ll stick to paraphrasing or make up new lyrics.
Tolkien made up lots of songs, Steve. I only wish I could get through them.
This has nothing to do with legal worries, but I love to make up stuff that sounds real (wait, isn’t that what writing is?). Similar to Tarantino putting Red Apple Cigarettes and Tobacco in a lot of his movies (fake brand), I’ll write in little Easter eggs of phony pop culture. I’ll write, the two danced to “Tender Red Moon” etc. I may even throw a couple lyrics in. I have no idea whether this is a bad literary move, but it’s something I indulge for fun.
That does sound like fun, Philip. And as Arthur Bach put it, fun is the best thing to have.
ASCAP who patrols the copyright waters for music pirates don’t believe in no stinkin’ fair use. They patrol the world with battleships full of lawyers, and they aren’t afraid to use them even for a sentence. No author or publisher can afford to fight them. They will bankrupt you with their first salvo. Friends who go the legal route have found out that even a few lines from an obscure band will cost more than what they will make for the life of the novel.
Implied music with different lyrics makes ASCAP crazy, but, often, they can do nothing about it. John Ford’s iconic classic STAR TREK novel, HOW MUCH FOR JUST THE PLANET?, has the characters singing dialog/lyrics but never mentions what music they are using. Figuring out the music is part of the fun. And the frustration for the copyright lawyers. It’s been around for many years with nary a fee that I know of.
RE: HOW MUCH FOR JUST THE PLANET?–I haven’t read that one in a good while. Will have to dust it off and re-read.
And, it’s all one-sided. It boils my piss that pop song lyricists often brazenly lift phrases and lines from writers (novelists, poets and short story writers) without acknowledgement or recompense. Entertainment – it’s a rigged market, folks.
Oh, but that’s sampling what the rappers do.
Plagiarismo No! Sampling si!
Jim, what about a folk song that goes back in multiple versions hundreds of years? If a group changes some words here or there, does that give them a copyright on the whole song? Would they have the burden to show that no one ever used those words before?
I’m thinking particularly about “Stewball was a race horse.” Lead Belly sang a version back in the day and recorded it in the ’40s. I presume anything in P, P & M’s version that’s in Lead Belly can’t be copyrighted.
That’s one of those murky issues, Eric. The original words, if you can find them before 1927, are absolutely free. If someone changes the words a bit here or there, maybe they could make a stink (lawyers are all about making a stink), but it would be a little stink, and I don’t think that stink would stick.
Very informative, Jim. To avoid problems, I stay away from lyrics. And rather than paraphrasing, I write about how the song makes the character feel.
Good reminder, Steve. It’s always about how the character feels. Thanks for the comment.
Thanks for making that clearer. I like the idea of paraphrasing or making up your own. That way no worries!
Indeed, there are more than enough worries to go around!
Every once in a while, this sort of issue comes up in writers’ groups. You get people talking about Fair Use, though no one exactly knows what Fair Use is. What I’ve learned is that when we’re claiming it, it’s only a guess. Fair Use is only decided in court. Yes, the owner can decide if they’ll accept the use of their property, and how much of it can be used for free, but once it comes down to the Fair Use laws, they can only be decided in court.
I’m going bookmark this post and share it in those arguments now. Thanks for making it so clear!
For many years, churches often ignored copyright laws when it came to printing or photocopying songs from the songbooks. About 20 years ago, that changed – at least in our archdiocese. Because we wanted to put the lyrics on an overhead screen so the congregation could read them, some dedicated volunteers went to work getting permissions for the songs we needed it for.
We had one song, a lovely haunting song that could really only be sung at Easter. Some of our choir members had sung this song in a junior choir decades earlier, and the music had been photocopied and passed around for years. The volunteer had the hardest time tracking down the owners of the song, but found them. The owner’s response was, “We didn’t know anyone was still singing that song! You can do anything you want with it.”
They would probably never have known what we were doing with their song if we hadn’t contacted them, but it felt good to know we had their blessing.
You are so right about fair use almost always having to be decided in court. What an absolutely inefficient way to handle things!
I agree with all that.
When reading, the title of a song evokes the whole thing at least as well as selected lyrics (for me, at least). As you said, it also gives the Motivated Reader a handy path back to the song. I typically use the title and the character’s reaction to the song without repeating any lyrics. This isn’t about copyright, but if Fair Use exists at all (and it does), referring to songs by name can hardly be outside its scope.
But if I want to use a couplet like, “And he said, ‘Son, this world is rough, and if a man’s gonna make it, he’s gotta be tough,'” I’ll follow this impulse. But I wouldn’t use more than a couplet, name a story after an in-copyright song or quote it in the first few pages. I’m too proud to hook the reader by hanging onto someone else’s coattails.
Well said, Robert!