When I wrote The Sad Girl, there were several lines from songs that I wanted to use in the book, because they really fit the scene, or because Danny was a fan of the artist. I had to do a lot of research into how to go about using song lyrics in a manuscript, and in the process found a lot of myths and erroneous information about how to do this. Here’s what I learned from that process.
The most important thing I can tell you is make sure you really need the lyrics in the story, because using lyrics will cost you time, effort, and most importantly, money. There’s no way around that. And for the most part, it’s going to be on you, even if you don’t self-pub. Most publishers take the position that it’s the author’s responsibility to get rights if rights need to be obtained.
When should you start the process? Not the day before you’re ready to publish. 🙂 It’s probably best to start after your first draft is finished. One reason is usage context. The rights administrator is going to want to see how you’re using the lyrics, meaning they’re going to want to see the pages where the lyrics appear. Starting your request at this point lets it run in the background while you’re doing your second draft, your edits, getting your cover done, etc.
Yes, it really could take that long.
Before we get too far, let’s talk about fair use. That’s the often-quoted (and often mis-applied) doctrine that says certain uses of a copyrighted work are not actually an infringement. It’s an affirmative defense though, which means each individual usage will be examined on its own merits, and it will only be examined after you’ve been sued. You have to prove your innocence, in other words.
US Code (17 U.S.C. § 107) says “the fair use of a copyrighted work,…by any other means…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” That section of code goes on to list the four factors a court will use to determine fair use vs. infringement.
So what constitutes fair use of lyrics? This article over at Jane Friedman’s website gives a great example using Prince’s “Little Red Corvette.” Based on that list, you’re much better off as an author to always request permission to use song lyrics. Why? Because one of the tests is the amount of the work you’re using.
I wanted to use twelve words from a Meat Loaf song in The Sad Girl. The song only runs about 580 words, so that’s just over 2% of the work, which happens to be the most often suggested percentage that you’re supposedly allowed to use without permission. But think about this: that same percentage of an average novel of 85,000 words would be about 1,750 words, or almost 7 pages. As an author, are you comfortable with someone quoting almost 2,000 words from your book? That seems like way too much to take without getting permission. Granted, that’s a personal opinion, but I’m not comfortable with the idea of getting sued. “It’s easier to get forgiveness than permission” is not a safe maxim in the legal world.
Affirmative defenses can only be offered to a legal claim, meaning you’ve been sued. When (not if) your unlicensed lyrics usage is discovered, you and your publisher will get a cease-and-desist letter and your book will be pulled from bookstores until things get resolved. Once they are resolved, you’ll likely have a very unpleasant conversation with your publisher, even if things are resolved in your favor.
That assumes you’re not an indie author. If you are, you get sued personally, and you’re on the hook for the damages, which can run as high as $30,000 per work infringed. Add in attorney’s fees on both sides (if you lose the suit, you can end up paying fees for both sides), and it gets very expensive very quickly. Here’s one example of a $10 photo that cost a copywriting firm $4,000.Affirmative defenses only work after you've been sued. #FairUse #lyrics #amwriting Click To Tweet
4 Quick and Easy Steps
Here’s a quick overview of the process.
- Write the novel (You knew this, right?)
- Find the owner of the lyrics
- Contact their licensing rep
- Negotiate the license
I probably don’t need to say much about the first step, but I will say this. Be aware of the context of your lyrics usage. Is your character singing along to the radio? Is he quoting the song to a friend or lover for a particular reason? No matter how you’re using the lyrics, have a Plan B, in case you find out that the songwriter doesn’t license their lyrics, ever, for any usage, or you decide that the license is too expensive for your taste.
Your Plan B could be your character paraphrasing the song. Or you could get really creative and come up with your own singer, and your own song, so that you own the lyrics.
But you need to have a Plan B.
Who Owns the Lyrics?
So you’ve decided you really need the lyrics in your story, and that you’re going to seek permission. What next?
There were two songs that I wanted to use, by two different recording artists. We’ll use Meat Loaf’s “Out of the Frying Pan (And Into the Fire)” for demonstration purposes. It was on his 1993 studio album Bat Out of Hell II: Back into Hell. So I just need to call up Meat Loaf, or maybe contact him through his Facebook page, right?
Some singers are songwriters. Many are not. In this particular case, the song was written by Jim Steinman, so he owns the rights. I knew Steinman was the songwriter because I’m a Meat Loaf fan and I own the album. By the way, for an interesting comparison to what you might think of as the original, listen to Steinman’s recording of the song.
How do you figure out who owns it if you don’t know for sure? Search the ASCAP, BMI or SESAC databases. ASCAP is the American Society of Composers, Authors and Publishers, an American not-for-profit performance-rights organization, meaning they help artists control the licensing of their work. Broadcast Music, Inc., better known as BMI, is the other American rights organization. Every US-published music artist is a member of one of these groups. Some are members in both. A third rights organization is SESAC, originally the “Society of European Stage Authors and Composers,” founded to help European artists deal with American royalties.
All three organizations offer a searchable database, where you can plug in the song title, the singer’s name, or if you know it, the songwriter’s name. Keep in mind you want the person who wrote the lyrics, which might not be the person who wrote the music or sang the song. I’ve found that MetroLyrics tends to have the lyrics properly credited more often than other sites. That makes your searches a little easier.
Once you search the database (I used “out of the frying pan and”), you’ll end up with something like this screen. I know Jim Steinman is the songwriter, so I choose the song that lists him. But I choose the publisher, not the songwriter because the publisher controls the rights administration. That gives us the publisher name (Lost Boys Music), and a contact name (Howard Siegel), as well as a mailing address and URL.
Contact the Rep and Negotiate the License
As it turned out, Pryor Cashman is not the actual rights administrator. In an email conversation with Mr. Siegel, he explained he is Mr. Steinman’s IP attorney. Mr. Siegel directed me to Arminda Trevino, at Carlin America, and I negotiated the licensing terms with her via email. She asked for the exact lyrics I wanted to license, as well as context within my work. I emailed her PDFs of the Word document showing the usage, and we were set. I sent her a check for $100, and gained a license for 4,000 uses of the lyrics. Once I sell 4,000 copies of the book, I need to contact Carlin to re-license the lyrics.
I learned that since the license was issued to me, I didn’t have to pay another fee when Gravity re-released the book. That was good news.
If you aren’t fortunate enough to get an introduction like I did, you have to try a different tack. Carlin America has a nice FAQ section as well as an “Inquiries” button on their menu. The FAQ tells you what’s needed to license a song, and the Inquiries button lets you establish contact with someone. What’s supposed to happen there is that the website message gets routed to the attorney assigned to the artist whose song you want to use.
About That Plan B
Remember I said there were two artists whose lyrics I wanted to use? With the other artist, my website request got lost in an email black hole for several weeks. I sent another, made contact with an attorney, and…nothing, for weeks again. I finally ended up calling the practice to explain that I wasn’t getting anywhere. That got me a new email contact who really didn’t handle things any better. I ended up deciding it wasn’t worth the effort, notified them I was withdrawing my request and rewrote the scene. That’s why I said above to make sure you really need the lyrics to make the scene, and always have a Plan B. Be prepared to kill those darlings.Always have a Plan B when using #lyrics in your book. #amwriting Click To Tweet
It may be that you don’t even get a contact name, just the name and mailing address of the practice. Not all law firms have elaborate or coherent websites like CA or Pryor Cashman. You might have to Google the firm to get contact information and reach out the old-fashioned way to get started.
You’re a Professional
The main thing to emphasize here is to remain professional all the way through the process. Entertainment law practices can be huge, and represent multiple artists. Word can easily get around the practice and the industry, and you’ll have a difficult time getting through to anyone once you’re marked as a PITA to work with.
That should give you what you need to start your own licensing process. If you have any questions, drop them in the comments and we’ll see what I can do to help.
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