Author Can't Quote A Single Line Of A Song In His Book Without Paying Up

from the fair-use-is-dead dept

We've pointed out in the past just how ridiculous it is that publishers are incredibly risk averse when it comes to quoting anything in a book without permission. Even though brief quotes should undoubtedly be fair use, most publishers won't allow even single sentence quotes without permission just to avoid the risk of getting sued.

Author Fletcher Wortmann alerts us to the ridiculous situation he faced with a memoir he has that's coming out next year, where the publisher freaked out about the inclusion of two song lyrics as intros to various chapters:
But thankfully my editors requested only two changes that I objected to, both involving song lyrics Id used as introductions to two of the chapters. Apparently, although neither of these was more than a line (and neither was more than 10% of the work, so my borrowing should have been permitted under fair use), I could not quote without risking a lawsuit. Apparently I could offer to pay the rightsholders in advance (anywhere from a hundred to a thousand dollars), but this was not recommended, because it would invite further legal scrutiny of the work which we were already slipping though the gates under the cover of darkness. If I refused to pay I would be sued, and if I agreed to pay I would be sued by someone else.

This is stupid. This is stupid in a staggering number of ways that I will now elaborate for you.

First, this is all in spite of the fact that, in the glorious age of the internet, I can find the not only the complete unauthorized lyrics to both of these songs but also pirated music concert videos, mp3s, and Youtube music vids with spliced-together footage of Troy and Abed from Community exchanging sexy glances. If people want your song, there isnt a thing you or I can do to prevent them from taking it and doing what they like with it. Denying an author access to lyrics does nothing to change this.

And aside from its fundamental uselessness, this legal barricade me as an absurd perversion of the intent of copyright. Its generally accepted that the purpose of copyright is to prevent bootlegs from being produced, so that no one buys an illegal copy instead of the original and cheats the artist out of a buck. Thats an admirable and just notion. But in what insane parallel universe is someone going to skip buying a song because I quote part of the chorus? Who is going to read a memoir, glance over a dozen words, and decide theyve somehow illicitly derived the essence of a rock song they no longer need to purchase? Does my quoting lyrics in some way decrease the value of the music?

Fer chrissakes, if anything, Im recommending your song. Im telling my reader that I loved this music, that it meant so much to me that I used it to encapsulate a chapter of my life. If it was Diet Coke or something instead of music, youd pay me to mention your product.
One very minor point: there is no "10% rule" as many people seem to assume when it comes to copyright and fair use. I agree that this almost certainly was fair use, but for many reasons having nothing to do with 10% usage. For example, the key point that Fletcher makes later: that the impact on the market for the work is unlikely to be harmed here is a key pillar in showing fair use.

Either way, this is yet another example of copyright law being used to stifle a form of creativity and speech rather than encourage it.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Nick Taylor, Jun 24th, 2011 @ 6:48pm

    I'm not sure how possible this is (hey, everything's possible man), but what we really need is a systematic way for creators to ignore oppressive IP laws.

    A napster of creativity etc. In the future we'll all be banksys. We'll have 15 minutes of fame but no one will know who we are.

     

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      ChimpBush McHitlerBurton, Jun 27th, 2011 @ 10:15am

      SIMPLE SOLUTION

      Look, this is a very small issue. There is really no problem here. The only reason people sue in these situations is to extort money from deep pockets, in this case the perceived deep pocket of the publisher.

      So...Self Publish! You don't need the publishing houses anymore anyway. Because you won't have anything to take (at first) you won't get sued. If your book becomes a huge internet success...Double Bonus!

      1) You will have WAY more of the proceeds of your book to yourself, having avoided the scam that publishers play on unsuspecting authors.

      2) You will still have fair use on your side.

      3) You will be able to afford the lawsuit, and may even be able to counter sue for copyright abuse, making the process of copyright extortion less attractive to these bullies.

      Imagine that: being able to stand up for your rights, and make more money even in the event of a lawsuit!

      Brilliant.

      CBMHB

       

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    out_of_the_blue, Jun 24th, 2011 @ 6:50pm

    Problem with simple cure: don't quote songs.

    To me, doing so smacks of "borrowed finery" (or borrowed plumes as another allusion has it), author appearing to wish to borrow the ineffable emotional effect that a song has on listeners, and since the effect of a song can't possibly be conveyed from its text, just skip it, hopelessly feeble attempt all ways.

     

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      Kaden (profile), Jun 24th, 2011 @ 7:37pm

      Re: Problem with simple cure: don't quote songs.

      It's kinda ironic that you'd quote other people's allusions in making a point about the folly of quoting other people's lyrics.

      Smacks of filched feathers to me.

       

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      The Devil's Coachman (profile), Jun 25th, 2011 @ 5:08am

      Your screed sounds more like out_of_the_blow.

      As in, your non-point blows, and makes sense only to you. Your use of the term "borrowed finery" is pure horseshit. The rest of your post is sheer idiocy.

       

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      PaulT (profile), Jun 25th, 2011 @ 8:45am

      Re: Problem with simple cure: don't quote songs.

      "(or borrowed plumes as another allusion has it)"

      So, you borrow another's phrase to criticise someone else for borrowing phrases? Hmmm...

      "author appearing to wish to borrow the ineffable emotional effect that a song has on listeners"

      One listener in particular - the author himself. Others may have not had the same experience with a song (a lot of the emotional effect of music is highly dependent on the context in which you hear it and the memories associated with it), others may never have heard it at all.

      It's a fallacy if you're an artist and can't recognise that the emotional impact of art is purely down to the previous baggage the audience brings to it. As for "ineffable", perhaps the exact emotions the author is trying to convey are encapsulated perfectly within the phrase he's trying to quote?

      "the effect of a song can't possibly be conveyed from its text"

      Hmmm... then why are all the lyrics sites being attacked then?

       

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      Niall (profile), Jun 27th, 2011 @ 6:38am

      Re: Problem with simple cure: don't quote songs.

      Are you saying that lyrics on their own are empty and meaningless? Shame on you!

      That is part of the beauty of culture, that you can refer to elements of it within other elements. Nor is it necessary that only one delivery method works. That's like saying that written words cannot be meaningful if spoken, or vice versa.

       

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    Anonymous cowards mothers corpse, Jun 24th, 2011 @ 6:52pm

    Can't wait for the apologists to come on here and defend this one

     

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    E. Zachary Knight (profile), Jun 24th, 2011 @ 7:11pm

    This guy needs to take a note from Joe Konrath and completely bypass his jittery publisher. Publish the book yourself and do it the way you want it. No stupid edits to avoid lawsuits that won't come. Just a nice book exactly as you intend it.

     

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      zegota (profile), Jun 25th, 2011 @ 7:17am

      Re:

      "This guy" probably wants to be a writer, not a publisher. And anyway, self-publishing is an extremely risky venture. One where the rewards for the top 1% are great, yes, but advising all writers to shirk off their publishers is a terrible idea.

       

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    mrtraver (profile), Jun 24th, 2011 @ 7:12pm

    He nailed it

    I agree 100% with the statement "If it was Diet Coke or something instead of music, youd pay me to mention your product."

    This is what has always confused me about rhythm games - shouldn't the music copyright holders have been paying the game developers for using the music to further interest in the songs, rather than the other way around?

     

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      Greevar (profile), Jun 25th, 2011 @ 8:06pm

      Re: He nailed it

      Hey, getting paid by the people promoting your services is a pretty good deal, I think.

       

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      Huph, Jun 27th, 2011 @ 1:47pm

      Re: He nailed it

      shouldn't the music copyright holders have been paying the game developers for using the music to further interest in the songs, rather than the other way around?


      I'd wager that the selection of hit songs is what attracted people to the game in the first place. I doubt many people discovered "More Than a Feeling" from Guitar Hero.

       

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        dwg, Jun 27th, 2011 @ 2:53pm

        Re: Re: He nailed it

        Really? What do you think the biggest age-demographic is for Guitar Hero? And when was "More Than a Feeling" last played on a radio station that those people listen to?

        You're exactly wrong.

         

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        PaulT (profile), Jun 27th, 2011 @ 3:46pm

        Re: Re: He nailed it

        I know more than one person who was introduced to that song through a Barclaycard ad last year, and many people had never heard a Journey song before Glee covered them. You'd be amazed at how quickly some songs are forgotten outside of your own age group and regional influence...

         

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    Alex Bowles, Jun 24th, 2011 @ 9:18pm

    The Publishers are right

    One of the uglier facts that surfaced in the 'Kind of Bloop' case is the sheer cost of defending even the most dubious copyright claim. Yes, you can assert Fair Use, but only if you've got (on average) $300,000 to defend that claim in court.

    The burden, in these cases, in on the person claiming fair use. In other words, the plaintiff doesn't have to come with with $300k of their own. That's just you on the hook. And that's just to make your defense. If you fail, it's almost certainly ruinous.

    Given the absurd dollars involved if penalties are imposed, the 'security through obscurity' take no longer makes sense. Combine substantial profit motive with modern data mining, and the odds of not getting caught get worse by the minute.

     

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    theskyrider, Jun 24th, 2011 @ 11:28pm

    fireworks and copyright infringement.

    Ohhhhh....

    Ah.......

    Oh my.....

    Goodness!!!!!

    Gracious....

    Look at those great balls of fire!!!

    Please.

    We are rapidly approaching a saturation point where any given sentence can be found in somebody else's work. Pretty soon every work could possibly be infringing on another.

    Another example, less obvious.

    Person on deathbed, "Who's that? Who's there?"

    Me, "I don't see anybody."

    "He's there...He's reaching out to me."

    Light dawns on my marble head. "That's the reaper. Don't fear the reaper, take his hand and he'll lead you into the light."

    Enough?

     

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      Sajjon, Jun 25th, 2011 @ 1:38am

      Re: fireworks and copyright infringement.

      Ditto!, Try and write something that hasnt already been written...it's all been said before (

       

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      Chronno S. Trigger (profile), Jun 26th, 2011 @ 4:58pm

      Re: fireworks and copyright infringement.

      "Who's that? Who's there?"

      Don't be stealing lines from Portal.

      /sarcastic yet relevant comment pointing out that most anything has been said already.

       

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    Nicedoggy, Jun 25th, 2011 @ 4:36am

    http://singularityhub.com/2011/06/22/new-japanese-pop-idol-shocks-fans-with-news%E2%80%93shes-not-re al-video/

    Celebrity Scandal Japanese New Idol was not real

    What happens when the artist can live forever?
    Computers can create music and even emulate styles of music, now we got to a point where digital actors and performers are getting hard to spot.

    So what happens when those creations can't die?

     

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    Anonymous Coward, Jun 25th, 2011 @ 7:26am

    No 10% Rule?

    Oh yes there is. Just because it is not in the US does not mean it does not exist. As an example it does exist in Australia. I can quote up to 10% of a book or article in a magazine, provided I include a reference to the original, with no legal consequences, more than that and then I am in legal trouble.

     

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    The Infamous Joe (profile), Jun 25th, 2011 @ 9:01am

    Bigger Fish

    One very minor point: there is no "10% rule" as many people seem to assume when it comes to copyright and fair use.

    You take the time to talk about this phrase, but no mention for the single worst phrase on the page:

    Its generally accepted that the purpose of copyright is to prevent bootlegs from being produced, so that no one buys an illegal copy instead of the original and cheats the artist out of a buck.

    That's not the purpose of copyright, and the fact that it's "generally accepted" as the purpose of copyright is the reason we're in this mess in the first place. Even the people defending against these obscene copyright rules are quoting the copyright maximalists' propaganda. That's bad.

     

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    Fletcher Wortmann, Jun 25th, 2011 @ 1:27pm

    Thanks for the link, Mike. I was pleasantly surprised by the response in the comments: I know this blog gets its fair share of trolls, but people seem to understand why such a minor issue can be so frustrating to deal with.

    PaulT: yeah, that's what I was going for, quoting song lyrics. The book is a memoir about my struggles with obsessive-compulsive disorder, and I wanted to include references to the music and fiction that influenced me at the time to help give the reader a better understanding of my state of mind. We live in a post-modern media environment - everything is saturated with popular culture. If art is supposed to encapsulate and mirror life, then how can I accurately reflect modern living without referring to popular culture?

    Infamous Joe: I phrased that sentence very carefully - note the "it's generally accepted that..." part. I'm aware of the history of copyright, but I'm trying to write for a general audience, and didn't want to get into a history lesson. I agree with you entirely though - copyright has never been about what people assume it is.

    I'm optimistic about the future of intellectual property, if only because we're the first generation to really understand the the possibilities of communication technology, and once we take power I can't imagine these ossified old legal systems lasting much longer. Somewhere on the internet, a girl is writing terrible Harry Potter fan fiction, unaware that one day she'll be a senator. A kid editing an anime AMV set to Girl Talk will grow up to be a federal judge. I think they'll have a very different take on these matters.

    I'm lucky enough to have a publisher, and I've agreed to make small compromises to take advantage of their resources and publicity. But yeah, the internet means that if you're willing to make a gamble and DIY you can sidestep that process entirely. Technology has reached the point that, at least in the US, corporate censorship of speech is basically impossible - try to block something you don't like, and it will be torrented and remixed across the net. Art breaks down barriers. It's only a matter of time.

     

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      PaulT (profile), Jun 26th, 2011 @ 4:20am

      Re:

      Hi Fletcher, great to see a post from an author, and I'm glad I got your intentions correct. It's certainly true that art is an important part of everyones' lives, which is why it's so dangerous for it to be locked up ad infinitum by copyright, especially with such misguided totality that a single line quote can be deemed dangerous. Hopefully this will change, although I fear you might be a little optimistic about future senators and judges remembering their childhoods when corporate money tells them to forget it. I hope i'm wrong...

      Good luck with your book, with or without the quotes!

       

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    JMT, Jun 25th, 2011 @ 2:52pm

    "If it was Diet Coke or something instead of music, youd pay me to mention your product."

    I think this is the most important line in the whole post. It is unbelievably selfish, greedy and arrogant for a content creators (or worse, non-creating rightsholder) to demand money for what in so many cases if free, beneficial advertising.

     

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    Vic, Jun 25th, 2011 @ 9:28pm

    Totally in line with banishing epigraphs in books in Russia (I did send that story with the relevant link in some time ago). Not necessary lyrics from songs, could have been lines from just poetry or other books. Looks like those publishers coordinate their business across the ocean...

     

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    Gill Bates, Jun 26th, 2011 @ 7:38am

    Re: out_of_the_blue,

    "Simple Cure" is part of a lyric from "When I am King."

    You quoted it, Pay up.

     

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    Ryan Biggs, Jun 26th, 2011 @ 8:22am

    not quite

    "Its generally accepted that the purpose of copyright is to prevent bootlegs from being produced, so that no one buys an illegal copy instead of the original and cheats the artist out of a buck."

    Well, that's part of it. The other part is ensuring that other people cannot profit off of your creative work with out permission. If you are leveraging the popularity of other people's song lyrics to draw readers into your work and help them make a connection with you more quickly, and that plays some small role in helping you sell more books, then you are profiting from the creative work of others.

    Having said that, I agree that it should be easier for you to pay a fair fee to the owner of those lyrics and include them without fear of a lawsuit. Fear and Loathing in Las Vegas just wouldn't be the same without "Sympathy for the Devil".

     

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      Anonymous Coward, Jun 26th, 2011 @ 9:06am

      Re: not quite

      You neither have to ask permission or pay a fee if its use is fair. That's not how art works.

       

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      Anonymous Coward, Jun 27th, 2011 @ 12:27am

      Re: not quite

      Your permission is irrelevant. You do not have control over what people do with your creative work. You may feel as if you are entitled to it, but you may as well feel as if you are entitled to a unicorn. Nobody else will take you seriously. Suck it up.

      The law may say you are entitled to it. The law is absurd, and evil, and wallowing in unintended consequences. And even if it were none of those things, it still has nothing to do with whether you are actually entitled to it.

       

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        PaulT (profile), Jun 27th, 2011 @ 2:03am

        Re: Re: not quite

        Ah, ridiculous extrapolation from our favourite troll. Try reading the law - the part that describes fair use. Then explain how things like the usage outlines in the article do not fit that definition. I'll wait.

        Alternatively, point out where in this or other articles people are arguing for unlimited use of others' copyrighted material for commercial gain (other than arguing that copyright is too long). Citations, if you please.

         

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    Mojo, Jun 26th, 2011 @ 6:13pm

    remember....

    While reading these comments and engaging in conversation, let's not loose sight of the fact that there IS NO LAWSUIT here, nor is it even likely that the inclusion of one line of a song lyric would even trigger one.

    This is all about an overly skittish publisher wanting to avoid any situation in which a lawsuit is even conceivable; not one that might win or has any validity, they just don't want to open the door to even the most remote POSSIBILITY.

    If anything i'd like to see this discussion talk a little more about how nice it would be if publishers and other content distributers would at least stand behind their artists and look at situations with an eye towards what is actually legal.

    The usage of the song lyric here is well inside fair use, and I think any judge would probably throw the case out as a frivillous lawsuit at first sight. The publisher wouldn't incur ANY legal cost here, let alone that ridiculous quote of "at least $300,000."

    In fact, all this shows is just how paranoid the publisher is, since the likelihood of a record lablel actually wasting THEIR money to file a suit here is extremely unlikely. It just wouldn't happen.

    Yet rather than work under the guise of basic common sense, the publisher forces the author to make creative changes simply to satisfy his blind paranoia.

    Content distributors need to grow a pair. Hell, just grow ONE!

     

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      PaulT (profile), Jun 27th, 2011 @ 2:01am

      Re: remember....

      I agree. However, what we must also remember is that none of these fears held by the publisher are baseless. There's plenty of examples of publishers being sued, content ordered removed, sites shut down, etc. due to what is clearly fair use. Sadly, the publisher has decided that the best way to avoid such legal battles is not to utilise any kind of copyrighted material.

      " think any judge would probably throw the case out as a frivillous lawsuit at first sight"

      I wish that were true, but there are examples of cases where this has not happened.

      They should grow a pair for sure, but their fears are very grounded in the reality of what may happen to them. It's not blind paranoia, sadly.

       

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    Mojo, Jun 26th, 2011 @ 6:14pm

    A similar situation

    Actually, I just remembered a similar situation I was once in...

    I worked on the special features of a DVD for MGM. I had a still gallery of the merchandising from the movie, but MGM wanted me to get signed permission from the people who released the merchandise to just SHOW A PICTURE of the items (toys, a ViewMaster reel pack, etc).

    I told MGM "but you guys OWN this stuff - all these people licensed it FROM YOU! First of all, they couldn't sue just because you showed a picture of their product, but beyond that they couldn't sue because YOU HOLD THE COPYRIGHT!"

    MGM didn't care and still wanted signed release forms. When I contacted the merchandise makers, they all said the same thing: "you want ME to give YOU permission? But YOU own it!"

    It all comes down to everyone being afraid of a lawsuit and losing their jobs over things that aren't even legally possible.

    Ultimately, this story just proves that content distributors should just use common sense when making decisions and not compromise their artists' works over pure paranoia.

     

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    John Doe, Jun 27th, 2011 @ 4:27am

    You judge others based on your own actions and thoughts

    People tend to judge others by measuring against themselves. That is why the jealous spouse is jealous because they are usually a cheater and assume the spouse must be as well. So what I would like to know, is the publisher worried about getting sued because of past experience or would they sue if someone quoted one of their books? Just a thought.

     

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    IrishDaze (profile), Jun 27th, 2011 @ 11:24am

    Alternative to quoting a lyric or two . . .

    I wonder how many release forms and licensing fees would have to be dealt with if an author simply NOTED a song that should be considered/reviewed at the beginning of a chapter?

    Instead of this: Once I ran to you (I ran) / Now I'll run from you / This tainted love you've given ~Soft Cell

    Use this: Mood: Tainted Love by Soft Cell

    No one can POSSIBLY sue you for MENTIONING a song by name and performing artist, right?

     

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    Irving, Aug 7th, 2011 @ 4:34pm

    Ridiculous

    This is just ridiculous. You can't quote what you yourself wrote because of copyright?

    http://dld.bz/validate

     

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    Vonjazz, Nov 9th, 2011 @ 3:52pm

    Thanks so much for the warning.

    This is, I feel, a sad reflection of a warped industry, trying its best to shoot the innocent when unable to lock up the real criminals who steal entire songs and often profit from doing so - online, downloads, sharing...etc, etc. It reminds me of inept police who go after soft targets only.

    What I find mindblowing is that I can arrive at my local pub each Friday night and be PAID to sing an endless arrangement of Beatles' songs or Van Morrison numbers, thereby earning a living, and not have to pay anyone a cent.

    How does quoting a few lines in a novel disadvantage the songwriter in any way? In fact it could be seen as a form of free advertising.

    This alongside the reality that lawyers from the music business will pounce on anyone who even quotes one line from a song in any publised book, simply defies logic.

    The novel I have written might even inspire people to listen to the Leonard Cohen songs and others I have quoted as an introduction to some chapters. I think the music industry should be challenged on this. Winston Churchill wrote for pleasure and for profit also - if I quote him all that is needed is recognition at the end of the quote (as long as it is a small fraction of the total word count of my writing.

    What gives the music business the right to demand money when their writers are quoted and given credit in the same way one does a well known politician or philosopher? If their argument is that the song was written to earn money from performance, then my above example of earning money from gigs without permission makes their argument ridiculous.

    Surely there are others who would like to challenge this? If so please email me: vonjazzvideo@gmail.com

     

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    Chris Zielinski (profile), Apr 2nd, 2013 @ 2:37am

    Can't quote or won't quote?

    This is a case of a writer being terrified by his publishers' lawyers - not by the law. His publishers' lawyers say he can't quote the lyrics and both he and his publisher believe them. Lawyers always err on the side of caution. I strongly doubt that the music company would take the publisher to court for publicizing the song by using the lyrics as chapter headings - after all, publicity can only lead to more sales, to the benefit of all rightsholders - the lyricist usually, and/or the music publisher.

     

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