Using Songs

[Actingup]

I guess it's ultimately going to be about what the site is comfortable with. We should take care to cite our sources and avoid lengthy quotes. I'm going to edit mine with that in mind.

 

[Actingup]

They did Get Em Off Irene

Thanks - the depth of knowledge amongst Lit authors is always extremely impressive, I must say! I found it here:

"Rip 'em off Irene... I like your personality." LOL!

 

[RetroFan]

I often hint at songs in my stories - usually for the setting in a particular era - without actually saying what they are or quoting lyrics.

For example in one of my stories set in 1959 three cheerleaders drive down the road listening to the radio and singing along, and the girl narrating advises that the next song to be played is about an island on the California Coast, 26 miles from Los Angeles. The girls are then overtaken by a poorly maintained vehicle occupied by the four guys who are the biggest slackers in school who are also listening to the same song and singing along with it, the narrator noting that the four young men are hardly prep material, unlike the group singing the song.

This of course tells us that the song everyone is listening to and singing along with is '26 Miles' aka 'Santa Catalina' by The Four Preps, and anyone who is familiar with the song can hear it as they are reading (or can look it up on Youtube if it is before their time) without me having to quote a single line from the song or even name it.

 

[Bramblethorn]

No. This is bad advice.

To expand on that:

"Nature of use" (e.g. commercial/non-commercial) is one of the factors that goes into evaluating a free use claim, but not the only one. If the other factors weigh heavily enough against free use, it could still be infringing.

Plus, Literotica runs banner ads etc. and to get money from those ads they need viewers, who are drawn here by stories. Even if the stories themselves are free, and authors are only being paid in kind (hosting for stories) rather than in cash, that probably complicates the issue of whether this can be considered non-commercial use.

 

[lilshymynx]

It seems at least one law professor disagrees with you there:

Section 107 of the Copyright Act states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” I would assert that use of song snippet in a novel makes a “comment” about the song, but note also that the listed items are not exclusive. Section 107 offers them only as examples (“for purposes such as …”).

https://dorianbox.com/song-lyrics-in-fiction-fair-use-doctrine/

"Comment" in the context of fair use is about providing commentary on the excerpt. If you wrote a story about musicians and your characters were talking about the song - discussing the prose or the meter or some aspect of the lyrics - then you might have an argument that it was fair use. Simply dropping lyrics in a story in order to evoke an emotion or set a scene isn't commentary.

 

[Bramblethorn]

It seems at least one law professor disagrees with you there:

You neglected to quote the part of that page where he says: "The folks telling you to never ever use even a snippet of a song lyric without permission are giving you the safest advice to follow."

Section 107 of the Copyright Act states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” I would assert that use of song snippet in a novel makes a “comment” about the song,

But he offers no arguments or cites to support that assertion.

According to this bio of what appears to be the same person, he's published in areas including "legal education, privacy law, firearms law and policy, comparative law, wrongful death, logic and rhetoric, elder financial exploitation, health law, and products liability". Notably absent is "intellectual property law". I'd credit him for having some understanding of the basics of law, but it's not at all clear why we should be putting a lot of weight on his assertion here, especially when he himself acknowledges that it'd be safer not to use song lyrics at all.

If this is a reasonable interpretation with a good chance of holding up in court, surely one could find a lawyer who does have experience in IP law and is willing to provide stronger arguments for it?

(I know of one successful author who is a former professor of IP law, but I don't think she's ever offered an opinion on this point; OTOH, I've never seen her quote a song lyric in her books, so make what you will of that.)

 

[YDB95]

To expand on that:

"Nature of use" (e.g. commercial/non-commercial) is one of the factors that goes into evaluating a free use claim, but not the only one. If the other factors weigh heavily enough against free use, it could still be infringing.

Plus, Literotica runs banner ads etc. and to get money from those ads they need viewers, who are drawn here by stories. Even if the stories themselves are free, and authors are only being paid in kind (hosting for stories) rather than in cash, that probably complicates the issue of whether this can be considered non-commercial use.

All I know is, I've opened several of my stories with a couplet from a song that inspired it or that the story reminded me of, and I've never run into any trouble with it.

 

[Kelliezgirl]

You neglected to quote the part of that page where he says: "The folks telling you to never ever use even a snippet of a song lyric without permission are giving you the safest advice to follow."



But he offers no arguments or cites to support that assertion.

According to this bio of what appears to be the same person, he's published in areas including "legal education, privacy law, firearms law and policy, comparative law, wrongful death, logic and rhetoric, elder financial exploitation, health law, and products liability". Notably absent is "intellectual property law". I'd credit him for having some understanding of the basics of law, but it's not at all clear why we should be putting a lot of weight on his assertion here, especially when he himself acknowledges that it'd be safer not to use song lyrics at all.

If this is a reasonable interpretation with a good chance of holding up in court, surely one could find a lawyer who does have experience in IP law and is willing to provide stronger arguments for it?

(I know of one successful author who is a former professor of IP law, but I don't think she's ever offered an opinion on this point; OTOH, I've never seen her quote a song lyric in her books, so make what you will of that.)

Your statement was:

"Dropping song lyrics into a story to beef up the emotional impact is not the kind of use that "fair use" aims to protect."

The lawyer in question feels differently.
You want to attack his claim by pointing out he doesn't specialize on IP law, fine.
What's the basis for your expertise to back up your claim? Why should I accept your claims as an internet rando over that of an actual attorney who has studied the matter?

And, of course the safest course of action is to not do it. Even if you win in in court the cost might be ruinous. That doesn't have anything to do with the actual legality.

As he also mentioned later in the article,
"As mentioned, I was unable to find any cases where a fiction-writer was held liable for infringing a copyright by reprinting a song lyric."
So both you and your IP law expert friend are just speculating, and any actual decision will hinge on the specifics of the case in question. To what extent that precedent will answer the question is impossible to guess.

 

[Kelliezgirl]

"Comment" in the context of fair use is about providing commentary on the excerpt. If you wrote a story about musicians and your characters were talking about the song - discussing the prose or the meter or some aspect of the lyrics - then you might have an argument that it was fair use. Simply dropping lyrics in a story in order to evoke an emotion or set a scene isn't commentary.

That's your opinion, the lawyer I quoted sees the matter differently.
And, as he also pointed out Fair Use doctrine states, "such as" meaning it is more open ended than just those specific examples.

 

[Bramblethorn]

All I know is, I've opened several of my stories with a couplet from a song that inspired it or that the story reminded me of, and I've never run into any trouble with it.

I hope your good fortune continues. But just because it hasn't happened yet doesn't guarantee it never will.

The main thing I'd be worried about here is automation. It'd be prohibitively expensive to hire people to comb the internet looking through sites like Literotica for infringing use of song lyrics. But increasingly we're seeing use of automated enforcement for such things. Right now that's focussed on higher profile venues like YouTube, but if it gets efficient enough that there's a buck to be made in going after sites like Lit, things might look different.

Given the current "anti-porn" climate, it's also possible that somebody might pick copyright as a handy excuse for trying to get sites like Lit shut down.

 

[Kelliezgirl]

I know this is the internet and we aren't supposed to use common sense, but think this one through for a second.

There are probably thousands, if not 10s of thousands of stories on Lit with lyrics of some sort in them.
The reality is if you write a story using a bunch of Taylor Swift lyrics you aren't going to get a letter from her lawyers.
The site is.
What are Laurel and Manu going to do?
IMMEDIATELY take the story down and send a response of "thanks for bringing this to our attention, the content has been removed."
They have ZERO incentive to do anything else, and every reason to immediately comply.

Do you really think if that was happening there wouldn't be a bright line policy here on Lit about not doing it? Yet, there are thousands of stories still up, no policy against it. What does that tell you?
It tells you it isnt happening. If it were there would be a policy against it. Because, again, it makes no sense for the site to take the risk.

The entertainment industry can't get piracy and copyright infringement on places like YouTube under control, do you think they have any concerns about us? Unlike piracy and YouTube we aren't costing them money.
No one isn't buying the new Taylor Swift album because they read 2 lines of one of her songs on Lit. If they are downloading the torrent of her complete discography on the other hand
...

 

[SinclairGroupLLP]

There is no point in debating the legal merits without facts, because each situation is going to be different, and even with the same facts, different courts can look at the same thing differently. This is why this whole area of the law is a giant pain in the ass.

The real question, therefore, is what the risk and what is the likelihood that someone is going to find the lyrics and somehow trace them back to you, an individual, and sue you for copyright infringement.

The chances of that are very, very low, for a variety of reasons. The use of pseudonyms, the fact that only the admins are making money, that the most likely solution to a DCMA or copyright claim would be the removal of the story rather than anything else, among other things makes the chances of someone being held personally liable for a copyright claim for a story posted here and not monetized low.

In the end, it's critical to remember that the entire point of these laws is to ensure that the original author is the only one making money off their creations. If you aren't taking money from their pockets, their incentive to go after you is pretty low, generally not worth the cost.

I'm not saying that it never could happen. I'm saying it's unlikely. If you have a tolerance for the risk, that's fine. If you don't, and you want to self-censor so you don't get close to the line, that's fine, too.

 

[Melody_Lightdraft2]

Has anyone used snippets of song lyrics in their stories? I have one story in which the first-person narrator is trying to seduce an adamantly virginal Catholic girl. At one point, they are at a place with a jukebox that has music from different eras. he punches up a song, and she notices the lines

You Catholic girls start much too late
But sooner or later it comes down to fate
I might as well be the one.

That's all I use. I think that's just about the limit under Fair Use, but it does play a role in the character arc.

You have to be so careful around copyrighted lyrics, I know song titles are ok. Although in one story my two female characters chant, "Alice, Alice, who the fuck is Alice?"

 

[Actingup]

This has been a useful and timely discussion. As a result, I made quite a few little changes to my Nude Day story (which is heavily music focused) just now before submitting it - it still quotes some song lyrics, but less of them. I'll see how it goes in the process.

(Although... it's a bit weird to even bother thinking about that on the day when I was kindly informed that my most read story on this site has been stolen and put on a YouTube channel that rips off people's work without consequence!)

 

[Writer61]

Has anyone used snippets of song lyrics in their stories? I have one story in which the first-person narrator is trying to seduce an adamantly virginal Catholic girl. At one point, they are at a place with a jukebox that has music from different eras. he punches up a song, and she notices the lines

You Catholic girls start much too late
But sooner or later it comes down to fate
I might as well be the one.

That's all I use. I think that's just about the limit under Fair Use, but it does play a role in the character arc.

I have the name of a song in my Nude Day story, but that is all. The story has been approved for publication.

 

[Writer61]

They did Get Em Off Irene

I remember seeing them live when I was at university I think as part of some comedy revue.

Their name, and first song, Meaningless Songs in Very High Voices, was a BeeGees pisstake. Tim the Gecko sticks in my mind.

 

[OffNSFW]

I've never tried to use a whole song, but I used a whole chorus from "Escape (The Pina Colada Song)" by Rupert Holmes in "Storyteller: A Summertime Novella" and a whole verse from "Summertime Blues" by Eddie Chochran in "Summer of Sydney." (I guess there's something about summer that puts me in the mood for music.) I never received any pushback from the mods and it never once crossed my mind that it could be illegal.

I'm quoting lyrics from quite a few songs for my Nude Day entry, so fingers crossed! But the only 'complete' lyrical fragment is a (credited) German poem from the 1800s, and hopefully no direct descendents to sue me.

As far as the United States is concerned, any work published before 1930 is considered public property. I reckon you're in the clear.

It seems at least one law professor disagrees with you there:

Section 107 of the Copyright Act states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” I would assert that use of song snippet in a novel makes a “comment” about the song, but note also that the listed items are not exclusive. Section 107 offers them only as examples (“for purposes such as …”).

https://dorianbox.com/song-lyrics-in-fiction-fair-use-doctrine/

As I understand it, fair use tends to be difficult to prove. If you're accused, it's on you to demonstrate that you're in the right.

 

[SkyBubble]

The question is: How many people have used "Come on Eileen" in a story? : P

The MFC in one of my stories is named Eileen, so I could have if it had been relevant.

 

[Kelliezgirl]

As I understand it, fair use tends to be difficult to prove. If you're accused, it's on you to demonstrate that you're in the right.

As mentioned, there really isn't any significant case law on the topic regarding lyrics in a fictional work.
The flip side of the coin is that there is very little incentive for the right holders to try and establish case law. Litigation is expensive, even for record labels or rights holders with deep pockets. Damage likely won't cover litigation coats even if they win.
There is an economic incentive to go after digital piracy, there's no incentive to go after people claiming fair use.
And if they lose... it's off to the races.
Right now they have a significant portion of the fiction writers living in fear, people claiming "You absolutely can't do it" and gate keeping for them.
Lose one case and you blow the gate wide open.
So the status quo favors them.

 

[Actingup]

For what it’s worth, my story with lyric quotes was accepted last night with no problem.

What may be more controversial for the readership is that it also has a digression where the narrator discusses her personal preferences for ‘classic rock’ jilling songs with extended instrumental solos (or in the case of Hotel California, duets). Her father unwittingly introduced her to her personal favourite, Genesis’ ‘Firth of Fifth’ (where the bass drop happens as the guitar solo peaks). I expect push-back, but we’ll see…

 

[WittyUserName]

Has anyone used snippets of song lyrics in their stories? I have one story in which the first-person narrator is trying to seduce an adamantly virginal Catholic girl. At one point, they are at a place with a jukebox that has music from different eras. he punches up a song, and she notices the lines

You Catholic girls start much too late
But sooner or later it comes down to fate
I might as well be the one.

That's all I use. I think that's just about the limit under Fair Use, but it does play a role in the character arc.

I did, yes. And it got published. Like you, I was worried about the copyright issue. In the end, I decided it wasn't worth it. The characters were doing karaoke. The safest advice would be to try and work around it. You could say she notices the lines about starting late, etc... rewrite in your own words a bit that a song makes her think. You're probably fine as-is, but it made me personally more comfortable to edit the lyrics out of my posts.

 

[stickygirl]

So 'dream dream dream dream - dream dream dream dream'
is fair use but
'dream dream dream dream - dream dream dream dream when i want you in my arms'
is not
YW