A couple of weeks ago, I had the good fortune to be asked to be a panelist at Killer Nashville 2014, a convention of mystery writers and true crime writers. The panel was called “The Letter of the Law: What Does Every Writer Need to Know About Copyright, Intellectual Property and Rights and Permissions” and I prepared by reviewing everything I could on the right of privacy and the right of publicity.
While these topics were vigorously discussed, I was surprised that a number of the attendees had questions about how to use music in their books, specifically how much of a song lyric could they quote without subjecting themselves to a claim of copyright infringement.
The answer was best summarized by one of my co-panelists, attorney Casey Del Casino who, if I recall correctly, rephrased a famous quotation “It’s easier to ask permission than to beg forgiveness”. In this regard, it is so important to remember that reprinting lyrics in a literary context is no different than reproducing any other piece of music. The right to reproduce is one of the exclusive rights that belongs to a copyright owner.
For some reason, people seem to misunderstand the concept of “fair use”. Fair use is a statutory defense to copyright infringement and while the concept of fair use is robust and can cover a number of situations - it won’t help you until you get sued. There is no magic formula in literature any more than there is in music (e.g. you can use six notes but not seven…)
This is not to say that a writer can’t quote a line from a popular song or discuss the song in the context of a work. Just don’t assume that you can quote lyrics verbatim - get permission. This brings up another important point. If you are looking to publish a work and need to seek permission to reprint lyrics, seek that permission early; don’t wait until the last minute. It can take some time to track down the appropriate person (or persons) and to get them to get your request on their radar. Again just don’t assume that because you are using this work in a “literary” context that this provides any sort of ironclad defense to copyright infringement. It doesn’t.