Copyright And All That Jazz

Something that comes up regularly in writers' forums is the question: 'Do I have to pay to reference songs?'

Here's my attempt to answer that, and some other commonly questioned copyright issues. Please remember that I am not a lawyer - if you think you might be in serious trouble, contact The Society of Authors, not me! 

If I've missed anything important out, or made a hideous blunder, do mention it in the comments.

REFERENCING TITLES, NAMES AND POPULAR CULTURE

There's a really big distinction between referencing and quoting. Referencing involves giving the subject a cheeky nod by mentioning its name, nothing more. Quoting involves copying content word for word. 

For example, Jane Austen referencing Ann Radcliffe's The Mysteries of Udolpho in Northanger Abbey by mentioning the title was a respectful nod to one of her main influences - that's fine. Had she based Northanger Abbey in Catalonia, stolen Ann's plot and best lines, and renamed Emily St. Aubert as Catherine Morland, that would not have been so fine - that would have been plagiarism. 

Unbranded titles and names don't carry copyright restrictions. That's why you can have two books with the same title, such as The Dark by James Herbert or John McGahern, Forever by Judy Blume or Shayla Kersten, and The Other Side by Istvan Banyai or Jason Aaron & Cameron Stewart. You get the idea. Incidentally, it's always worth running the proposed title of your novel through Amazon first, in case it's going to cause confusion for your marketing campaign.

Contemporary fiction increasingly references popular culture. Some people argue that doing so dates a novel because, in ten years, popular culture will have moved on. The references that draw your readers in today may alienate them tomorrow.

I'd say it's a matter for careful consideration: live in the now, produce a relevant and culturally astute novel for today's reader, or omit all popcult references and hope that you write an enduring masterpiece that is still considered a classic in ten years. Swings and roundabouts. 

Having a character listen to Bob Marley or watch Maroon 5 on telly is unlikely to land you in any trouble, you could even give the title of the song, but don't quote the lyrics - that's a whole other issue which I'll go into below.

Provided your popcult reference is just a nod to the times we live in and doesn't hijack real-life people and use them to slanderous ends,  you're on fairly stable ground. As long as it's obvious to most literate individuals that your book is a parody, a satire, a work of complete fiction, and by no means a biography of factual events. 

REFERENCING BRANDS

Some names, such as Coca-Cola, Kellogg's, Walmart and so forth, are branded products. Branding is more about promoting their product than preventing anybody from ever mentioning it. It tends to denote a large business with a lot of money, which they may choose to invest in things like lawyers, for example.

There's an interesting thread called Referencing pop culture in fictional work where, in 2005, Clay201 posted the following:

The teacher was some sort of guru in the arena of cheaply made films. He covered the dos and don'ts of using identifiable commercial products in films by saying, simply, "Don't have a character kill someone with a coke can." In other words, don't portray the product in a manner that might cause people to not want to buy it and you won't have any legal problems.

If you wish to play it ultra safe, that seems like very good advice to follow. Reference, but never in a derogatory sense.

On the other hand, I can't help thinking of Man Booker Prize winner DBC Pierre's follow-up: Lights Out in Wonderland, where he described the universally appreciated horror of finding oneself trapped in IKEA.

Another example from the above thread, posted by ldenneau, reads:

One of the most daring examples of [brand use] I have read is Matt Ruff's hilarious Sewer, Gas and Electric. The story describes a... secret plot by none other than Walt Disney to create an army of animatronic genocidal Electric Servants whose mission is to eradicate blacks. Matt Ruff hasn't been sued into oblivion, so I'd say you're OK.

There are several other examples. Author Max Barry comments on the issue of 'getting sued':

People often ask how I get away with using real company names in my fiction. I'm not completely sure; all I know is I keep using real company names and they keep not suing me. But I can think of two possible explanations. One is that my novels are protected free speech, since they're clearly parodies and don't allege actual misdeeds. That is, when I use a real company name, it's just like using a real place name -- and the City of Los Angeles has yet to sue James Elroy. The other explanation is that I always use highly visible, brand-name companies, and suing a comedy writer would be terrible PR.

So, assuming that these companies do have a back room where they sit and scour every single item of text that might possibly reference any of their products in a bad light and, in so doing, decide to take legal action - you can be pretty sure you'll be joining the back of a very long queue.

One area that's a little more delicate, however, is the branding of titles and names. For instance, at the Cheltenham Literature Festival this year, Christopher Brookmyre mentioned that he'd once tried to title a book: Peter Pan was Shot Down Over... I'm afraid the name of the location escapes me. However, his publisher advised him that, as Peter Pan is branded, this was not something he could do without inviting a lawsuit.

This raises the key point that referencing is one thing, but involving somebody else's character in your own plot could open you up to plagiarism or breach of copyright. It's worth weighing up:

1. Has anyone done it before without being sued?
2. What's the company's track record on litigation?
3. Is it blatantly obvious that you've written a parody?
4. How much do you stand to lose v. whether you can pay.

Many publishing contracts contain author responsibility clauses which try to place responsibility for any breach of copyright on the author's shoulders. That's why it's important to feel confident about the work that you're putting forward. If you're not, and you're worried you might fall foul of the law, then it's probably best to amend your manuscript.

QUOTING SONG LYRICS

Quoting song lyrics is a whole different ballgame to referencing titles, names and brands.

Here's one of my favourite articles on the subject: Blake Morrison on the cost of quoting lyrics

...though it pained me to fork out £1,000 for 11 words of "I Shot the Sheriff" – that's more than £90 a word – I mustn't begrudge the Bob Marley estate. But next time I need songs I'll make them up myself.

Image from Crappy Graphs!

Whereas referencing popular culture is pretty harmless, quoting it may cost you an arm and a leg. This is a topic I've had some experience with whilst writing Angorichina.

I chose to quote a number of songs from the 1920s and 30s. When it comes to American music, it's worth knowing that:

1. The safest rule of thumb is that written lyrics are in copyright until 70 years from the end of the year that the author died. The author is the person who first wrote the lyrics, not anybody who sang them or penned the musical score - for these purposes they don't matter. A friend of mine in the know explained:

Copyright on reproduction and performance of both music and lyrics ceases 70 years after the writer's death. However, a recording comes out of copyright after only 50 years, regardless of the mortal status of anybody involved. A remastered edition counts as a new recording though.

The EU has recently extended copyright on recordings from 50 years to 70. That's of less importance to writers, but you never know when such information might come in handy. 

There's a helpful Public Domain Calculator that can help you work out whether material is still in copyright or not. If in doubt, seek out the rights holder and ask.

2. In America, anything published before 1923, and anything printed without a copyright notice until 1977, is considered to be in the public domain and therefore fair game. American copyright formalities can get extremely complicated because laws kept changing and came into effect at different times. Again, check out the Public Domain Calculator.

3. If you really must go for songs still in copyright, you may find it difficult to track down the copyright holder. This is especially true for the type of music I was after. It was still within copyright limits, but the likelihood of the original author still being alive was minimal. 

Although they probably won't thank me for mentioning this en masse, a very helpful music buff put me on to The Harry Fox Agency. I sent them a list of the songs I wanted and they sent me back the copyright holders, all bar one. Saved me untold amounts of time. Even though most of the songs I was chasing were very dated, they mostly belonged to big giants such as Sony/ATV and Warner/Chappell.

Here's where it became a drag. You'd think that big music companies with lots of money might have invested in a sensible system for logging copyright ownership and taking payments. What's the point of owning copyright if you're not going to assist hapless authors in parting with their cash?

Being a bit of an organisational analyst, I drew up a simple chart of my progress whilst trying to contact companies and secure permission to reprint these song lyrics. It ended up looking something like this:

Click here for full view

Rather long-winded. Each company had a different form, each wanted slightly different information, each had varying speeds of response. With one company, a whopping twenty-nine e-mails were exchanged over a ten month period before both paper and e-permissions were granted. That had little to do with negotiations and a lot to do with form filling. So, if you do plan on going down this route, the earlier you start, the better.

Because of the age of the songs, most quotes came in at around £50 with the highest reaching around £100. One company wanted to set a renewal limit at 1,000 copies sold, whereas most were happy to run to 9,999. You really have to work out the profit you'll make over those sales and decide whether it's worth it. I cut out a couple of songs and replaced them with material firmly in the public domain. The discrepancies I had to negotiate, and the sheer number of hours it took, mean that, like Blake Morrison, if I were ever to do it again, I'd either make up the lyrics or pluck them pre-1923.

From a business angle, I can't help thinking someone's missing a trick here. We may not be talking big bucks in my case, but money is still money. With this attitude, the music companies stand to lose lots of it. How much simpler for them to unite their databases and create a one-stop online shop for purchasing permission.

Anyway, enough whinging. I did eventually manage to get there, but I wouldn't recommend trying it for yourself.

I think the process is probably a lot faster, but also a lot more expensive, if you're trying to obtain modern-day lyrics. Still, you really have to set yourself a budget. At £90 a word, you have to wonder whether Morrison made enough sales to recoup his outlay. It would have bankrupted me.

Cheltenham Literature Festival Part II

Well, that's it for another year. The German Beer Tent folds itself up and transports to another dimension. The quirky QWERTY tent deletes itself from the scene, and the Council Offices once again take centre stage. As my friend once said: 'Cheltenham - I went there. Saw the Council Offices. Looked like Buckingham Palace.'

Indeed, they do.

Had a lovely time this year, and saw lots of awesome people:

Victoria Hislop              &               Roger McGough

Jasper Fforde           &             Mark Thomas

Lionel Shriver from 2010

Victoria Hislop

Never seen crowds like it! QWERTY was absolutely packed for our final visit to the festival. We went to see Victoria Hislop, bestselling author of The Island, and, incidentally, also wife of Ian Hislop of Private Eye & Have I Got News for You fame.

It never ceases to amaze me - Lionel Shriver, Jasper Fforde, Victoria Hislop - I reckon an 80% female audience for all of them. Very strange. The most men I saw in one audience was probably for Mark Thomas. Wonder what it is about fiction and women. Or literature festivals and women...? Certainly not a bad thing, just interesting.

Right, I admit to feeling a little embarrassed about this. The only reason I'm familiar with Victoria Hislop's work is because my editor at Green Sunset Books told me that The Island was one of her favourites.

However, herein lies a slightly strange tale.

My book, Angorichina, is about a tuberculosis hospice in 1930s South Australia. The Island is about a leprosy colony in the 1950s.

A few weeks ago, I received an e-mail from a lady who told me about a ghostly experience she'd had whilst visiting Angorichina Tourist Village. She wanted to know whether my story had been inspired by a similar experience. Very interesting e-mail.

However, one of the most haunting experiences that I ever had, was on the island of Spinalonga - which is where The Island is set!

On a family holiday to Crete when I was in my teens, my father, my aunt, and I hopped a boat across to see the place. When we returned to the UK, my aunt went to get her holiday snaps developed (yes, really - that's how long ago it was!); when they came back, the oddest thing had happened. All of the photographs both before and after Spinalonga were fine. But not one photograph from the island itself had come out. To this day, she still talks about it. Very eerie.

It was really interesting listening to Hislop speak. She's extremely engaging, with a wonderful reading voice that you could listen to for hours. I especially enjoyed it when she spoke of the power of photographs in developing stories.  The Mortlock Picture Archive at The State Library of South Australia was hugely influential in the creation of Angorichina. There is one photograph from 1932 - the year the story is set - in which I can see all four of my characters. I had already written most of the book when I found it, but somehow it felt as though I knew the people in the picture. Very surreal experience.

The embarrassing thing to admit is that I haven't actually read The Island yet. Having purchased a copy on the recommendation of my editor, it proceeded to do the rounds within my family. Everyone I went with knew exactly what was going on, whilst I sat there with mixed amounts of shame and fascination.

An absolutely brilliant end to an absolutely brilliant festival.

Better still, the event was sponsored by Bonne Maman. As we left the tent, everyone received a bag of goodies. Honestly, their mixed seed biscuits are delicious. We snaffled most of them at home on the lawn, sipping a cup of tea in unseasonable sunshine.

Lovely way to round off the festival. Very much looking forward to next year.

Roger McGough

Yet another excellent day at the literature fest. This time a morning performance by the legendary poet Roger McGough, who delivered a fine hour of reading and performance poetry. He also did some sketches - one (above) we managed to nab from the stage and get signed afterwards!

Wasn't such a good signing though. I hadn't thought it through very well. A little strapped for cash, I discovered an extremely old copy of Waving at Trains on my bookshelf, published in 1982. I'm fairly sure Dad posted it to me at uni  ten years ago, when we were discussing poets. He's a huge fan.

This, in itself, wouldn't have been so bad, only - on the way to the Waterstones tent where the signing was taking place - I turned the first page and discovered a faded pencil etching: 79p

So, not only had I failed to purchase a copy of his new work An Imaginary Menagerie, I'd also failed to purchase a copy of his original work.

Fearing being forcably removed from the book tent, Marilyn quickly purchased An Imaginary Menagerie and we went up together to get two books and a stolen piece of artwork signed. Luckily it was enough of a distraction to prevent him from leafing to the second page.

Roger McGough signing his pilfered picture.

He is fantastic to watch performing. If you get the chance - go! And another nice thing about Cheltenham Literature Festival during the day is that there are loads of kids running about. Lots of storytelling, children's books and things to entertain them.

Bubbles, stilts, plate spinning and juggling.

It's really encouraging to see the next generation of readers. Roger McGough bridges the age gap brilliantly, attracting pre-teens and sexagenarians alike. Not many can do that. Though, as my dad pointed out: 'Funny we're putting so much effort into encouraging kids to read whilst simultaneously closing all the libraries.'

Rounded off with a meal at The Rising Sun, which has one of the best views of any pub in the land.

Those are the Malverns right off in the distance. Glorious place.

Final one tomorrow - Victoria Hislop.

Mark Thomas

Definition of heaven? A red velvet cupcake from Cheltenham's Swallow Bakery.

Anywhere else in the country, they'd probably call it a 'caf', but Cheltenham oozes affluence and long words. You kinda have to go with it.

Within forty minutes of arriving at the festival, there had been cupcakes, coffee, and free whisky. Life doesn't get much better than that.

Oh, but it does.

Dear readers, today I struck one off my bucket list. Finally got to see Mark Thomas live. Was bloody brilliant.

Check out Cheltenham Literature Festival Part I for the run-down on what makes this guy so great. Like many, I grew up with his antics over Menwith Hill, taking on the arms trade, shaming the MOD over road deaths and aggravating the US Embassy over boundary lines. A wonderful individual.

I'm a bit aglow tonight (may have something to do with the whisky), as I continue to gush unrepentantly about the festival in general. I've said it before, but, really, what could be more wonderful than a festival of books? Books are great.

Just look at all of these people who agree!

Waterstones Book Tent

Almost as great as books are temporary buildings. Wandering around in the dark (at 8pm already!) behind the Waterstones tent, we chanced across the German Beer Tent. Oh yes.

Now, what makes the German Beer Tent so wonderful is that, after the festival, it simply disappears. Look at it. It's like some mystical shop or circus attraction that shimmers into being around the witching hour, then fades like mist with the breaking dawn. Well, not quite. It's sort of still there, but all boarded up. You know what I mean, though. It's kind of magical.

German Beer Tent

So, yes. Had a lovely time tonight. Two down, two to go: Roger McGough and Victoria Hislop. I'd love to hear from anyone who's been at the festival - highlights, lowlights.

My only lowlight has been the sprung floor in the Waterstones tent. It's like an inner ear infection. I've never felt seasick walking on dry land before. I'm terrified of striding purposefully across the room towards a book, and ending up flat on my face.

"My God! You're Roger McGough!"

"Yes. Do you need an ambulance?"

Ho hum.

Jasper Fforde & Christopher Brookmyre

 

What could be more wonderful than a festival of books?

Had a brilliant night on Tuesday. First in our Cheltenham Literature Festival line-up.

Whilst in Rwanda, the Programme Office had a resource room upstairs. One entire wall of this room consisted of ceiling-to-floor books. All the tomes that VSO volunteers, past and present, had brought with them on the plane or  received in aid packages from friends and family.

One or two of these books 'did the rounds'. Something somebody had read was deemed to be so entertaining that people literally put their names on a list to borrow it. Absolute top of that list was a book called Emergency Sex (And Other Desperate Measures): True Stories from a War Zone, which I will devote an entirely different post to.

Another big hit was a book that a friend posted to me, stating: 'you must read this!' It was The Eyre Affair by Jasper Fforde. I believe that it may have ended up in Ireland after my friend lent it to his mother, who read it on the plane home. It certainly went on tour.

The Eyre Affair is the first in the Thursday Next series of literary detective novels. Literally literary. She's a book detective who solves crime in fiction - because fiction is real, and bad things happen.

Deliciously surreal and refreshingly ridiculous. I've since discovered that loads of my friends got there before me. One of them, on hearing that I'd got tickets to see Jasper Fforde, offered to take care of all my 'wine needs' in return for a signed copy. An extremely fair swap - I'm off to make the exchange next week.

Mr. Fforde appeared alongside another comic crime writer, Christopher Brookmyre. I'm ashamed to admit that I wasn't familiar with his work. But I'm about to be. He absolutely stole the show with a scathingly humorous run-down on how Stephenie Meyer's Twilight Saga became so popular. Comedy brilliance.

           Jasper Fforde            Christopher Brookmyre

There were lots of really interesting topics discussed. Some that stuck with me include:

Use all Mediums of Inspiration

There was mention at one point of the aloof attitude of some literary writers towards the mediums of TV and film. The idea that literature should attempt to remain void of cinematic influence. Manifesting as a resistance to the inclusion of popular culture, for instance. As Brookmyre pointed out - cinema is possibly the dominant influence on today's society. Everybody is influenced by television and film to some extent, it's pretty much impossible not to be.

He went on to mention that computer games are now the number one entertainment industry in the world, and that more gaming companies are employing authors to develop background stories. Rather than simply churning out shoot-'em-ups, gamers are looking for a bit of depth to their carnage and bloodlust. Films and games are starting to overlap, influencing one another. He mentioned a recent film based on the concept of characters 'reloading'. It also brought to mind, for me, Silent Hill, which is a film entirely based on a video game.

Both Fforde and Brookmyre seemed to agree that people identify with popular culture in books. Why limit yourself to stand-alone literary fiction when you can draw from so many sources of inspiration throughout our collective culture? I thought that was a point well made.

Time Relevance

On the other hand, you have to be a little careful which popular culture you plumb for. Fforde had made reference to Mel Gibson in a novel, before his spectacular fall from grace. As it can take around two years from inception to publication, these references may not hold the same connotations when they come to pass your reader's eye.

Literary Dares

Fforde spoke about giving himself 'literary dares'. Coming up with a situation, giving yourself some rules, then trying to write your way out of it. This sounds like a fun exercise. One example he gave was turning a person into a banana, but he couldn't use the word 'banana'. It had to be written in such a way that the reader would finally understand what was happening without explicit reference. A simple dare that most of us have probably tried is to give yourself a list of obscure words and try to fit them into a short story.

Accentuate This

It was entertaining to hear that, whilst Jasper Fforde deliberately sets out to write about places you wouldn't usually (Swindon and Reading, for instance), Christopher Brookmyre felt that certain types of books lend themselves to certain types of places. He suggested that particular accents may be associated with specific genres and characters. His books are set in Scotland, and he reckoned there was something about a Scottish, straight-talking accent that complimented crime writing.

I'm going to devote a separate post to accents and characters soon. That's what I love about the Literature Festival, it inspires me to think about so many things.

Brilliant start to the week, totally looking forward to Mark Thomas on Friday.

Cheltenham Literature Festival Part I

(Image courtesy of welovethesky)

Bit of a mixed post today. In an outstanding mood, having booked tickets for this year's Cheltenham Literature Festival. I'm off to see Jasper Fforde, Mark Thomas, Roger McGough and Victoria Hislop.

Extremely excited. I went for the first time last year but, as I was working overseas, I only made one day. It was a fantastic experience though, and I got to see Lionel Shriver - author of We Need to Talk About Kevin, which is out as a film this year.

There's a really brilliant article here from May this year, titled: Lionel Shriver talks about Kevin

How does it feel to have your widely rejected manuscript become a best-selling, prize-winning novel, then a book-club favourite and now the toast of the Cannes film festival? The author of We Need to Talk About Kevin explains.

It truly was a privilege to listen to her talk. Same goes for Ann Cleeves, Andrea Maria Schenkel, and the Crick Crack Club - all of which you can read about in my post: Cheltenham Literature Festival 2010.

Looking forward to the whole line-up, but particularly stoked about going to see Mark Thomas. When I was growing up he was one of the country's leading political satirists, doing lots of crazy things like flying a hot air balloon over Menwith Hill listening station and entering a tank in the Lord Mayor's Show sponsored by the Church of England, in order to highlight their part in the arms trade. In short - a living legend. Can't wait.