Tuesday, 25 October 2011

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 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 time, 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, provided it is just a nod to the times we live in and doesn't hijack real-life people and use them to slanderous ends. It should be 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:



...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 right holders 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.

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