Fair use & song lyrics just don’t mix

I guess you’re never too old to learn a new trick. For example, did you know that song lyrics don’t fall under the terms of “fair use?” I didn’t, but as I’m putting the final touches on In the Heart of Darkness, getting it ready for it’s big commercial debut, I discovered this little tidbit of knowledge and thought it was worth passing along.

What is “fair use?” Stanford University defines it as “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.”

Generally speaking, you find fair use applying mostly to nonfiction works, which may require the frequent quotation or use of other sources to support their material. It’s utilized less often in works of fiction, and most times, it is applied incorrectly, as is the case with the use of song lyrics without permission.

I researched song lyrics specifically because my first chapter opens with one line from the Lady Gaga song, “Born This Way.” During the introductory scenes, I quoted a couple of other lines, no more than 25 words total from the song. From my limited experience with fair use, I thought this was well under the 300-word limit for fair use, and would have no problems. However, with publication underway, I wanted to make sure, and I wanted to appropriately attribute the lyrics to Mama Monster in the book.

Imagine my surprise to learn that not only does the actual fair use doctrine not specify a word count limit, but also doesn’t apply to songs. That’s because song lyrics generally don’t contain a lot of words (unless you’re Meatloaf, and then all of your songs are as long, word-wise, as War and Peace). If you were to excerpt 300 words from most songs, you’d wind up using a majority of the lyrics.

Additionally, song lyrics aren’t just copyrighted. They’re licensed, which means you not only have to obtain permission to use them, but you will also most likely have to pay a licensing fee for that use.

Publishing houses will usually try to take care of this for authors, but for us indie authors, we need to be especially mindful. Ignorance of the law doesn’t excuse us from it, and no one really wants to get a cease-and-desist letter from Lady Gaga’s lawyers.

So there you go. You can’t use song lyrics, even a few of them, without first getting permission, and paying for the use. What, then, is an author supposed to do? Take me, for example. Those lines from “Born This Way” had been included in my opening scene from the initial inception of this book. Hell, it was the song that gave me the inspiration for both the scene itself, and the book as a whole!

The best solution, barring jumping through all of the hoops and red tape it would take to legally use the lyrics, is simply to omit them (which I wound up doing). You can use the title of the song without permission, so you can write that your characters are dancing to “Born This Way.” You can have them reference the song, such as by squeeing, “Oh my God, Lady Gaga’s ‘Born This Way.’ I love this song!” Or, as I also ended up doing:

I wasn’t ‘born this way,’ Mason thought miserably, blinking down at the thin puddle of frothy emesis he’d managed to choke up. He felt ashamed of himself, his drunken stupor, his inebriated clumsiness, the entire disgrace of his attire, his smeared makeup and puke breath. I was not born to wear high-heeled boots and a G-string. Jesus Christ, I’m two hundred and forty-seven years old. What the fuck was I thinking?

Happy writing, gang!

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