Using Song Lyrics and Copyright Infringement Question

[midnightnightscrawler]

As a writer new to Literotica, I have a question regarding the use of copyrighted song lyrics stories published here.

I am currently writing a story in which I would like to include brief and incomplete excerpts of some romantic ballads. I have noticed that some writers incorporate song lyrics quite often, sometime extensively. I would like to know if there are any copyright infringement dangers in doing so. My understanding of the Fair Use Doctrine as it applies to fiction is that it only protects parodies. Should I be concerned about this?

 

[BobbyBrandt]

I have found that excerpts of only a few stanzas of the song are acceptable to Laurel, but too much of the song will likely get you a rejection. It's also a good idea to give credit to the songwriter in some fashion, such as "The words to the song by, xxx xxxxx came to mind..."

 

[Euphony]

I have found that excerpts of only a few stanzas of the song are acceptable to Laurel, but too much of the song will likely get you a rejection. It's also a good idea to give credit to the songwriter in some fashion, such as "The words to the song by, xxx xxxxx came to mind..."

Very much this.

There's no definitive legal standard but a couple of lines are about as far as it's sensical to go.

I have noticed that some writers incorporate song lyrics quite often, sometime extensively.

Examples, especially "extensively" would be interesting to see. Past stories here aren't precedent (submission guidelines get tightened up all the time) but I've not seen any egregious examples and, with a music themed contest in the nearish future, I could see people writing themselves narrative problems if there's many examples quite contrary to the current standard.

 

[oggbashan]

I use song lyrics out of copyright. e.g. Mozart, Jeannie with the light brown hair, but if it is in copyright only a few lines.

 

[SimonDoom]

1. If the copyright has expired and/or the song is in the public domain, then there is no obstacle at all. Copyright exists for the life of the author plus 70 years.

2. If you only use a couple of lines from a copyrighted song, you shouldn't have any problem.

3. If it IS copyright infringement, then giving attribution gives you no legal protection. In fact, the opposite, because it's an admission you knew the work was owned by someone else.

4. There's no copyright in song titles. If you want to write an erotic story called "Don't Stop Till You Get Enough," that's not a legal problem.

 

[ElectricBlue]

Very much this.

There's no definitive legal standard but a couple of lines are about as far as it's sensical to go.

Laurel allowed me to quote half of a poem, every alternate stanza. She'd apply the same limit to an in copyright song lyric, I'd expect.

 

[SimonDoom]

And what if I freely translate the song from another language? Don't I have some right to the translation, especially if it wasn't word-for-word?

It depends on the copyright law of the country in which the song was written. If it was written in the US, a translation of the song into French would be copyright infringement. A translation is considered a "derivative work" within the meaning of section 101 of the Copyright Act and the copyright owner, therefore, has the exclusive right over it under section 106.

 

[ElectricBlue]

It depends on the copyright law of the country in which the song was written. If it was written in the US, a translation of the song into French would be copyright infringement. A translation is considered a "derivative work" within the meaning of section 101 of the Copyright Act and the copyright owner, therefore, has the exclusive right over it under section 106.

Yes, that was Laurel's caution. I wanted to quote a D.M.Thomas translation of an Anna Akhmatova Russian original poem - the translation is his copyright, not hers (she died decades before his UK published translation).

She finally allowed me fifty percent, two stanzas. It made a bit of a mess of the intended meaning, but enough given that interested readers could go find the rest of the poem, somewhere else. There might, of course, be other translations, but I've not looked.

 

[Voboy]

...with a music themed contest in the nearish future...

I know it's not your main point, but I'll have to be That Guy and remind everyone that it's not a contest, but a challenge.

OP, I did a 750-worder where the song was essential to the plot (what plot there was, anyway) and where I quoted the lyrics freely, though sparingly (again, it was only 750 words; I couldn't quote much...). No problems getting it published.

I would not have done that in a longer piece, mostly because it was an idea that only "worked" at 750 words. In a longer piece, the song might have been essential to one part of the story, but proportionally the lyrics quoted would have amounted to only a tiny fraction of the final piece.

 

[Bramblethorn]

As a writer new to Literotica, I have a question regarding the use of copyrighted song lyrics stories published here.

I am currently writing a story in which I would like to include brief and incomplete excerpts of some romantic ballads. I have noticed that some writers incorporate song lyrics quite often, sometime extensively. I would like to know if there are any copyright infringement dangers in doing so. My understanding of the Fair Use Doctrine as it applies to fiction is that it only protects parodies. Should I be concerned about this?

Fair use is more complicated than a yes/no question. It comes down to a balance of four factors. "Purpose and character of the use" is one of those factors; purposes such as parody or review are more likely to be considered fair use, on the principle that things like literary criticism are valuable and it's often necessary to quote from the original in order to discuss it. Non-parody fiction isn't automatically excluded from fair use, but without "purpose and character" on its side it's going to need strong support on the other three factors.

Beyond that, my personal I-am-not-a-lawyer impression of things:

- The site moderation (Laurel) is probably more generous than a court would be on quoting lyrics that are under copyright. I suspect a lot of stories here that use song lyrics would be found in breach of copyright, if the rights holders cared to chase it.
- Pragmatically though, the question seems to be moot, at least for now. There's no indication that rights holders are interested in chasing these violations; they have much bigger fish to fry. It's possible this could change, e.g. if automated detection and filing made it easier for them to go after small-scale violations.
- Unless and until that happens, the main considerations are not legal but ethical and artistic.

 

[Bramblethorn]

I know it's not your main point, but I'll have to be That Guy and remind everyone that it's not a contest, but a challenge.

As somebody who keeps getting those wrong, I do actually appreciate the reminders!

 

[Euphony]

As somebody who keeps getting those wrong, I do actually appreciate the reminders!

Me too. In the moment I felt unsure enough to consider looking it up but my half-assery wins out sometimes. *the eternal struggle*

 

[Kumquatqueen]

my personal I-am-not-a-lawyer impression of things:

- The site moderation (Laurel) is probably more generous than a court would be on quoting lyrics that are under copyright. I suspect a lot of stories here that use song lyrics would be found in breach of copyright, if the rights holders cared to chase it.
- Pragmatically though, the question seems to be moot, at least for now. There's no indication that rights holders are interested in chasing these violations; they have much bigger fish to fry. It's possible this could change, e.g. if automated detection and filing made it easier for them to go after small-scale violations.
- Unless and until that happens, the main considerations are not legal but ethical and artistic.

I agree that it's vanishingly unlikely anyone would actually get in trouble for copyright infringement on Lit. The site covers its back by having a policy that is reasonably enforced. If a copyright owner wants to enforce their rights, they'll contact Laurel and go "Ahem. This story. Get rid, or else." Laurel will get rid of the offending story, job done.

I would imagine most lyrics copyright holders are happy for their lyrics to get publicity so people might purchase the song they came from. It's not the same as an image, where say Transport for London are incredibly hot on the iconic Tube Map and roundel symbol being copied or played with without permission - but even so, their first step is making contact and going "Excuse me - don't do that again..."

 

[Bramblethorn]

I agree that it's vanishingly unlikely anyone would actually get in trouble for copyright infringement on Lit. The site covers its back by having a policy that is reasonably enforced. If a copyright owner wants to enforce their rights, they'll contact Laurel and go "Ahem. This story. Get rid, or else." Laurel will get rid of the offending story, job done.

I would imagine most lyrics copyright holders are happy for their lyrics to get publicity so people might purchase the song they came from. It's not the same as an image, where say Transport for London are incredibly hot on the iconic Tube Map and roundel symbol being copied or played with without permission - but even so, their first step is making contact and going "Excuse me - don't do that again..."

The other difference there - TfL's branding probably comes under trademarks, and the laws on trademark dilution mean that you can lose a TM if you don't keep on enforcing it. With copyrights there's more of an option to ignore petty violations while still being able to go after big ones.

 

[BobbyBrandt]

I would imagine most lyrics copyright holders are happy for their lyrics to get publicity so people might purchase the song they came from.

I have had several readers mention that the went out and listened to the full version of the song after reading the snippet of the lyrics in one of my stories.

The MC's sister tells him that he is following her directions to her house if he passes through a town that reminds him of a Doobie Brothers song...

"Cute," Bobby thought as he realized Francis' reference to a Doobie Brothers song. "Now I'm going to have that damned song in my head for hours... "

"When the sun comes up on a sleepy little town

Down around San Antone

And the folks are risin' for another day 'round about their homes.

The people of the town are strange

And they're proud of where they came.

Well, you're talkin' 'bout China Grove, wo, oh, oh,

Oh, China Grove."

"Well," he thought, "at least I know I'm on the right road." Bobby tapped his fingers against his key fob to the beat of the song but his mind soon lost the rhythm...

Other readers mentioned that they knew the song, but never realized that it referred to an actual small town outside of San Antonio, Texas.

 

[stickygirl]

Fair use is more complicated than a yes/no question. It comes down to a balance of four factors. "Purpose and character of the use" is one of those factors; purposes such as parody or review are more likely to be considered fair use, on the principle that things like literary criticism are valuable and it's often necessary to quote from the original in order to discuss it. Non-parody fiction isn't automatically excluded from fair use, but without "purpose and character" on its side it's going to need strong support on the other three factors.

Beyond that, my personal I-am-not-a-lawyer impression of things:

- The site moderation (Laurel) is probably more generous than a court would be on quoting lyrics that are under copyright. I suspect a lot of stories here that use song lyrics would be found in breach of copyright, if the rights holders cared to chase it.
- Pragmatically though, the question seems to be moot, at least for now. There's no indication that rights holders are interested in chasing these violations; they have much bigger fish to fry. It's possible this could change, e.g. if automated detection and filing made it easier for them to go after small-scale violations.
- Unless and until that happens, the main considerations are not legal but ethical and artistic.

After a previous thread's dire warnings, I rushed to change the P!nk lyrics I'd quoted in a story submission, changing key words for others that still rhymed.

Perhaps this deserves a separate thread, but how does fanfic get away with using celebrity names? Out of caution, I changed a letter in each of the celebrity character names I used in my Goalposts PtII story, so that they were recognisable to anyone already familiar but not libellous. On Tumblr I have mutuals who write erotic fanfic without any such prudence and if I were that celebrity even I would be offended to read a story setting me into a fictional lesbian clinch.

 

[Voboy]

I think, if I was concerned about this and wanted to base vast swathes of a story on song lyrics, I might just be best-served to write my own song lyrics. Sorta like how Altman had his actors write their own country songs when he made Nashville (and one of them won an Oscar, I think!).

Sure, the lyrics themselves won't be familiar to the readers, but it should be simple enough to create a backstory that mentions how successful "that one song" was "a few years ago," with a few references to [real] similar songs that, say, competed with it at the Grammys. And if all the characters know the song, and you make the characters compelling enough, the reader should go along.

It'd be an interesting experiment.

 

[BobbyBrandt]

Perhaps this deserves a separate thread, but how does fanfic get away with using celebrity names? Out of caution, I changed a letter in each of the celebrity character names I used in my Goalposts PtII story, so that they were recognisable to anyone already familiar but not libellous. On Tumblr I have mutuals who write erotic fanfic without any such prudence and if I were that celebrity even I would be offended to read a story setting me into a fictional lesbian clinch.

Laurel seems pretty confident in posting most celebrity/fan fiction stories. SOL and other US-based sites seem pretty open to them as well.

I currently have five stories in my "Before They Were Stars" series that have well-known celebrities involved in sexual exploits before they became famous. From mainstream celebrities that most people would know, such as Michelle Pfeiffer, to Amy Smart, Ali Larter, and Deborah Norville (The only objection I have ever heard was from someone claiming to be a cousin of Deborah Norville and when he couldn't provide even the most basic biographical information on her to prove that he even knew her, I dismissed it.) I also have stories involving some popular porn actresses (Scarlet Red and Addie Andrews), and I doubt that they would complain about being depicted in sex scenes.

 

[KeithD]

The divide is what you should do ethically (especially if you yourself are an author with work of your own you would like to have respected), what is legal, and what you can get away with on a platform like Literotica.

Suing on copyright violations comes down to protecting profitability/branding. On that basis you can pretty much post anything Laurel will let you on Literotica--and the Web site's understanding of copyright seems limited; I've seen Laurel herself violate it. Her avatar probably does so every time she posts. The Web site permits copyright violation left and right here with little indication of understanding they are as liable as whoever gave it to them to post--and they are the most likely one to be successfully sued for posting it.

But there's little damage dirty/reputation damaging use of the original work will do by being posted on a porn site. That won't hurt the branding. And there's zero money to be recovered by trying to track down and prosecute the violator. They are hard to find and they aren't making any money off this here to be recovered.

So, it usually isn't a case of whether you legally can violate copyright here (you usually can't). It's more a question of what your personal ethics are, especially if you have works to protect as well, and whether you can get away with it if Laurel will let you (you usually can).

Getting away with it doesn't make it either legal or ethical, though.

 

[Bramblethorn]

After a previous thread's dire warnings, I rushed to change the P!nk lyrics I'd quoted in a story submission, changing key words for others that still rhymed.

Perhaps this deserves a separate thread, but how does fanfic get away with using celebrity names? Out of caution, I changed a letter in each of the celebrity character names I used in my Goalposts PtII story, so that they were recognisable to anyone already familiar but not libellous. On Tumblr I have mutuals who write erotic fanfic without any such prudence and if I were that celebrity even I would be offended to read a story setting me into a fictional lesbian clinch.

Lyrics are protected by copyright, a person's name isn't. Some celebrities and businesspeople do trademark their names, but trademark protection is market-specific, mostly concerned with preventing people impersonating a well-known brand to trade off their reputation. It doesn't prevent authors from naming a trademarked product in a story.

Legally, the main issue there would be if the story could be taken as making claims about the RL person's life, in which case it could come under defamation law. If it's clearly fiction, as celeb stories on Literotica usually are, it's unlikely to be breaking any laws - although the First Thing You Look At case is a reminder that sometimes judges can make odd choices.

So I think again it ends up being more of an ethical question than a legal question: you can, but should you? I think that probably comes down to specifics of the person and the story rather than a universal answer.

 

[32aa]

My first story I used the entire song and gave credit to the artist. It got rejected because of copyright issues. I then learned that if you use less than 50% of the original lyrics everything is fine.

 

[Euphony]

Am I correct in assuming the 50% cutoff is INCLUSIVE of any repetition?

So if the song has "I love you like butterscotch" repeated 12 times over the course of the song, your one instance of "I love butterscotch" weighs the same as whatever percentage those 12 times take up in the entire song? (likely mid to high double digits)

If so, wouldn't this also make very basic, repetitive songs especially problematic for inclusion?

 

[KeithD]

First, nothing has legal backing. Second, U.S. publishers, by agreed standard based on likelihood of being sued, will allow two lines of lyrics (in total and unless it's a critique of the song itself). No more. The 50 percent is just an uneducated guess by someone. Here on Literotica, you can get away with more because there's no financial recovery possible in reality. But you wouldn't be either legal or ethical.

 

[SimonDoom]

Am I correct in assuming the 50% cutoff is INCLUSIVE of any repetition?

So if the song has "I love you like butterscotch" repeated 12 times over the course of the song, your one instance of "I love butterscotch" weighs the same as whatever percentage those 12 times take up in the entire song? (likely mid to high double digits)

If so, wouldn't this also make very basic, repetitive songs especially problematic for inclusion?

There is no such thing as a 50% cutoff under the law. It does not exist. I defy anyone to find support for that. It's false.

Here is the reality: there is no clear rule under the law about how much of a song's lyrics you can quote without having a potential copyright infringement claim on your hands.

To some extent, I think people need to swallow a reality pill on this issue. If you have a character in one of your Literotica stories quote "Stairway to Heaven" and suddenly say, "If there's a bustle in your hedgerow, don't be alarmed now, it's just a spring clean for the May queen" you are NOT going to get sued. Be real. But you should be respectful of the copyright owner and not do more than quote a line or two. If that's all you do, then you will not have a problem. Just don't do more than that.

Let's apply common sense to the line "I love you like butterscotch." Nobody can claim an exclusive right to that line, right? It's not sufficiently creative or original. Lots of people in the world might like butterscotch so much that to express a love like loving butterscotch is just a way of saying how much they love you.

Keep it to a line or a couple of lines, and you'll be fine. The main question is whether you'll get by Laurel's gatekeeping rules, and if you do that you're almost certainly going to be able to rest easy at night.

 

[Euphony]

Let's apply common sense to the line "I love you like butterscotch." Nobody can claim an exclusive right to that line, right? It's not sufficiently creative or original. Lots of people in the world might like butterscotch so much that to express a love like loving butterscotch is just a way of saying how much they love you.

Slapdash example for sure. But it opens up the discussion of generic v. immediately identifiable. Gut instinct is, if I say a generic "I've been missing you like candy." but mention elsewhere Mandy Moore, suddenly generic becomes problematic. Is this so? Is there even more nuance than that?

Keep it to a line or a couple of lines, and you'll be fine. The main question is whether you'll get by Laurel's gatekeeping rules, and if you do that you're almost certainly going to be able to rest easy at night.

Laurel is usually the critic we are most concerned with (though, the way some of these lyric threads spool out, maybe some really ARE worried about the RIAA et. al. coming for heads?!!) It is all ambiguous enough and the discussions here guesswork to the point I'm of the opinion even educated guesses aren't but so useful.

We have a challenge based around music I'm hoping will enlighten the lyrics line in the sand a bit but time will tell.