This week’s question is of particular interest to me. I’ve written a short story in which a song plays an integral role in the story. But, is it legal? So, what do the experts say?
Songwriters and the songs they create are protected by copyright law, the same way other creative works are protected. Yet, we’ve all read books that incorporate songs, lyrics, or the artist’s name in the storyline. So, it’s possible, but is it advisable? The answer depends on whether the song is under public domain or still copyright protected.
Most of us are familiar with the general definitions related to copyright law, but let’s look at the legal definition.
Public domain (as it pertains to copyright): the right of anyone to use literature, music, or other previously copyrighted materials, after the copyright period has expired. A rule of thumb would be that the last possible date for copyright protection would be 50 years after the death of the author. (See: Copyright)
Copyright: A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.
Fair Use Doctrine: Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder.
What the Law Says:
- Creative works listed in the public domain are not protected by copyright. However, determining which are and which are not, can be time-consuming and expensive.
- Generally speaking, songs written and published before 1922 are public domain.
- Songs after 1977 do not fall under public domain and are protected by copyright.
- Songs that fall between the years, 1923-1977 will require research to determine their protection status.
- It’s possible to use creative works under the Fair Use Doctrine. However, in order to claim Fair Use, very specific criteria must be met.
- Artists names and titles are considered public domain and are not protected by copyright. But, if you want to make the artist a character, watch out. There are very specific guidelines for doing so and not following or seeking advice can be extremely costly.
What are the Options?
- Ask Permission – You’ve heard the adage, “It’s easier to ask forgiveness than permission,” but in this case, asking permission is the best policy.
- Seek legal counsel You might want to start with Hal Leonard, one of the biggest names in the music publishing industry.
- Decide to go another route – Instead of using the song or lyrics, depict the emotions the song evokes.
Copyright law is complicated, but it’s something in which, as writers and artists, we all need to be well versed. I have the answer for my story, but what about you? Still unsure? Before you take the chance, check out all the excellent resources below.
- Public Information Project – a compiled list based on USA Copyright Law and is available to help you research public domain music.
- Copyright Term and Public Domain – Research the copyright history.
- How to Use Lyrics Without Paying a Fortune or a Lawyer and a Sample Permission Letter – From The Book Designer –Helen Sedwick.
- How to Use Celebrities and Other Real People in Your Story– Better Novel Project, Guest post by Kathryn Goldman, Attorney for writers, artists, and businesses to protect their intellectual property.
- Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material – Jane Friedman – Guest post by Bradlee Frazer, Attorney.
- When Do You Need to Secure Permission? – Jane Friedman
- Copyright Office – Frequently Ask Questions
- Copyright Litigation Blog
- A Writer’s Guide to Fair Use