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Song Titles, Lyrics, and Copyright Infringement: When Do I Need Permission?

January 10, 2012 | Comments: 0 | Views: 150

If you're writing a novel or short story, you may encounter situations where you'd like to r

Q. Can I mention the title of a song in my work?

A. You can mention a song title -- or the title of anything else, for that matter -- freely, without asking permission.

Copyright law is based on the concept that unique works of authorship should be protected as the intellectual property of the author. However, it's important to note that in order to benefit from this protection, the work in question must both be unique and have original authorship.

Song titles, however, are considered neither of these things, and therefore they are not under copyright protection. In fact, in its "Copyright Basics" publication, the US Copyright Office specifically excludes "Titles, Names, [and] Short Phrases" from being eligible for copyright protection.

Q. Can I quote someone else's song lyrics in my work?

A. Except in certain cases, such as fair use, you will need permission before reproducing someone else's copyrighted material.

In most cases, using someone else's work without permission is considered copyright infringement. However, there are exceptions to this: Fair Use.

There is no hard-and-fast rule that states what is and is not considered Fair Use. Instead, the courts typically look at four factors:

The purpose and character of the useThe nature of the copyrighted materialThe amount of the work used, relative to the entire workThe effect of the use of the work might have on the market or value of the original work

The copyright does provide a few explicit purposes that qualify as fair use: commentary, criticism, and critique, for example. (This is how book reviews are allowed under copyright law, for example.) But there are other uses not specifically mentioned here, and whether or not your use is considered fair use, at the end of the day, must be decided by the courts -- the last place you want to end up.

Before it gets to that point, it's a good idea to look at the other factors so you can have some idea of whether or not your use might be considered fair.

With respect to song lyrics, look also at the factor relating to the amount of the work used. While there is no set percentage of the material that will be allowed at fair use, consider that quoting a mere two lines will be a more favorable use than reproducing the entire song.

Along these lines, the last factor can also help you determine whether or not your use might land you in hot water. The further the market for your new work is from the original market for the original song, the better your chances.

Here's an example. If you're writing a fiction novel and your protagonist walks into a coffee shop, a few lines from a song might be playing on the radio. Mentioning these lines helps to place your character in a certain time period; it likely does not detract from the original market or potential value of the song in the way that, say, reproducing the entire song in a Songs of the Century collection might.

Sarah Kolb, http://www.clickandcopyright.com

Since 2000, Click and Copyright has helped thousands of small business owners, independent entrepreneurs, artists, musicians, and writers start new businesses, protect their intellectual property, and stay informed. Click and Copyright is a member of the Legal Research Center family of businesses.

Source: EzineArticles
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