Part III: What is Fair Use?

Students are taught that it is appropriate and ethical to quote someone else’s material, as long as the quote is accurate and includes appropriate attribution to the correct source or author. It's only when trying to pass off something somebody else wrote as their own work—plagiarism-- that students get in trouble. 

Many people leave school thinking that the same principle applies in the rest of life, that is, that it’s okay to use other people’s work as long as you provide appropriate attribution. Unfortunately, with rare exception, this is wrong.

Section 107 of the U.S. Copyright Act provides an exception to a creator’s exclusive copyrights for ‘fair use.’  The fair use provision states that use of a copyrighted work or image  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Throughout your school days, you were quoting resources and cut-and-pasting images into reports under the statutory fair use exceptions for teaching, scholarship and research. School work fits the copyright exception for fair use, so the only concern was whether you were violating academic honesty policies for plagiarism.

Out in the non-scholastic real world, however, using all or even a small part of someone else's song, lyrics, novel, poem, advertising copy, or other copyrighted creative work without the copyright holder’s permission is a copyright violation.  Yes, even if you put their name on it. 

The non-scholastic fair use exceptions are quite narrow: criticism, comment, and news reporting. If you are a journalist writing about an upcoming band’s concert, or publishing a review of a new music video, you can use small excerpts from the bands’ lyrics, sound or video recordings for the purposes of illustrating your review or article. If you are writing a book review of a new poetry collection, you can insert excerpts from the poems. These qualify as fair use.

Even within one of these fair use categories, a use of a work may not be considered ‘fair use’. The statutory factors used to determine whether any particular use of a work is ‘fair use’ include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.”

So if I am a teacher, and take a whole textbook down to the copy shop and have it photocopied for all of my students instead of having them buy the book at several hundred bucks a piece, I have violated the book author’s copyright even though it’s for educational purposes: I used the entire book (factor 3), and deprived the author of the income from selling those copies of the book (factor 4).

If you are a songwriter, or a band, it is nearly certain that you are not a duly organized and IRS approved non-profit educational institution.  You write and perform music most likely with the full intention of making money at it (even if you don’t make a lot of money at it). If you are a writer or poet, again, you are almost certainly not a non-profit educational institution. If you are performing, recording, selling CD and digital downloads, getting paid for gigs, or playing for free at places like farmers markets where your role is to help other people make money, your music is what the copyright statute means by, 'of a commercial nature.' If you have monetized your blog, published or self-published your novel, non-fiction or poetry books, then regardless of whether your writing income barely reaches the double-digits per year, you are engaged in work “of a commercial nature”.

If you are inserting pieces of other people's tunes, lyrics, novels, poems, movie lines, or anything else under copyright into your music or writing, you will not be able to successfully claim that you were protected by the fair use doctrine. You will be committing  copyright violations--and you just might get sued. Those re-makes of classic 80s tunes you hear cut into modern hiphop or pop commercial tunes today? Those songwriters purchased a license to do that--or, more likely, the copyright was already owned by the same music industry corporation that did the re-make. 

To lawfully use segments of other people’s lyrics or tunes in your music, or to use lyrics or words from a novel or poem in your music, you must find the copyright owner, and get their permission to do so.  In another post, we’ll talk about buying the appropriate license to record a cover of someone else’s song; for small-batch recording of cover songs, the U.S. Copyright Office sets a standardized fee schedule. If you plan on using samples or segments of someone else’s music, or incorporating lyrics or words from written works, however, there is no set fee schedule. The cost will be whatever you and the copyright holder negotiate. In some instances, the copyright holder might give you permission for free; in other cases they may require a large sum of money and a complex written agreement. That’s their right as the copyright holder.

Just remember to license before you splice, or get permission before you cut and paste. Even with attribution.

Why Should Musicians Register Their Copyright? The Lion Sleeps Tonight!

Photo by Keyur Nandaniya on Unsplash

The tale has become legend in the music industry, particularly in the folk music community. In 1939, Solomon Linda recorded an improvisational song called Mbube at Gallo Records in South Africa. The song followed patterns of traditional folk music in the region, but was an original work, with Linda's choir The Evening Birds providing a deep compelling chant of low harmonies under Linda's high melodic tones.

The copyright for the song was transferred to Gallo Records, and the piece went on to be recorded by the Weavers, Pete Seeger, The Tokens and many others, evolving as it went, with changes in lyrics to make it more pronounceable by western performers, more understandable to western audiences, and more comfortable to listen to in western musical genre patterns. Along the way, many of these performers recorded their own copyrights of their versions and arrangements of the song.

Fast forward, and of course the song is now known as “The Lion Sleeps Tonight”, the theme song of Disney's Lion King, playing on Broadway, in movie theaters and home streaming services all over the world, as well as in chips in kid's lunchboxes, toothbrushes, stuffed animals and greeting cards. This 1939 original folk music recording is now worth millions, if not billions, of dollars. It is the auditory trademark to Disney's Lion King empire.

Solomon Linda died in 1962, leaving not enough money for a gravestone. He had lived on virtually nothing, with two of his children dying in infancy due to lack of food and other deprivations of poverty, according to a New York Times interview with his daughter Elisabeth Nsele. Solomon's other daughter, Adelaide, also died of AIDS, unable to afford life-preserving medical treatment.

Solomon Linda had been paid 87 cents by Gallo Records when he originally recorded Mbube. Years later, he did receive occasional payments from The Richmond Organization, the publishing house which published the Weaver's version of Wimoweh, as the song was called while it was being recorded by various U.S. folk artists.

Disney publicly claimed that they had obtained a license from Abilene Music for the song The Lion Sleeps Tonight, but how the rights passed, if indeed they did, from Solomon Linda to Gallo to The Richmond Organization to Abilene is a bit obscure.

Eventually, Solomon Linda's remaining heirs sued Disney, claiming that under the law in effect at the time, the copyright Solomon Linda had signed over to Gallo Records reverted to him and his heirs after 25 years. The Linda heirs, Disney, and the various publishing houses claiming rights entered into settlement for an undisclosed, but presumeably substantial, sum.

It is a somewhat happy ending, though it took a painful and difficult path to arrive there.

Lessons learned:

--When you write a song, you have no idea where it is going. If your song is genuine, heartfelt, original, and in your own unique voice, expressing a culture and emotions and a vision that only you can create, it may well take on a life of its own and become larger than you could possibly imagine. Treat each song as an infant that might well grow up to be the most well-known and recognizable song in the world.

--Your song may well succeed long after your death. Ensure that your copyrights, publishing contracts, and your estate plan take into account any successful revenue and song placement after your death.  Don't forget to specifically devise your copyrights to your heirs (that is, include a provision in your will designating who inherits your copyrights), or they may get lost in or attributed to the residue of your estate rather than left to your children or other intended heirs.

--Don't sell the copyright to your song for 87 cents, even if you are starving. This is a tough one. When you need the cash, and cash is offered, it seems well worth it. Just be aware before you take the offered paltry sum for a composition or recording that you may well have to just walk away in the future while your song rakes in millions for someone else. It's a risk, a gamble, and only you can make that decision--but make it with your eyes wide open.

--Track and enforce your copyrights continuously. More on this in the future posts....   in the meantime, Rock, Record, and Register your copyrights promptly.

Part I: Defamation and Privacy: A Brief Introduction for Writers

“But it really happened that way,” the woman in my workshop wailed. “And now my ex-husband is suing me!”

Being sued for defamation and invasion of privacy are risks that every writer takes whenever they write about something that is not entirely and obviously pure fiction. Journalists, authors of historical and social-issues nonfiction, memoir writers and authors of creative nonfiction run particularly high risks of being sued for defamation and breach of privacy.

“But I have my First Amendment rights!” the distraught woman continued. “This is my story, I’m allowed to tell it!”

The First Amendment to the US Constitution guarantees that the state or federal government will not charge you with a crime for things you have written, even if they are untrue. But even that guarantee is limited, as disclosing classified information or misusing government computers and databases can lead to criminal prosecution, as can making statements supporting the enemy in times of war. However, the First Amendment does not in any way prevent someone from suing you in a civil defamation or invasion of privacy suit if your words have done them harm. The First Amendment does not protect a writer from lawsuits by the people you have written about.

“How can it be defamation if it’s my true opinion?”

Defamation is a published statement about a person or business which is false, causes injury, and is not protected by a legal privilege. Let’s unpack that a little bit: “Published” in this context does not mean that it has to be in a book or magazine. For defamation law purposes, “published” just means that you said it either orally (slander) or in writing (libel) to at least one person other than the person you are talking about. Leaning over the back fence and telling your neighbor Mabel that Sadie’s husband is having an affair is gossip, but it is also publishing that information for purposes of defamation law. If it’s not true — Sadie’s husband was only driving his visiting niece around town — and Sadie’s husband winds up harmed by it —women stop frequenting his shoe store because they think he’s a lout — then the published gossip is also defamation. It does not matter that you were of the opinion that Sadie’s husband was having an affair when you said it. If you spout harmful lies about someone that hurt them, you may be found liable for defamation when that person sues you.

“…and I heard she is only fifteen years old!”

Some statements are considered by the courts to be defamation per se. That is, they are such an awful thing to say about someone that, assuming they are not proven to be true, the course will presume they did harm so the person suing doesn’t have to prove they lost customers or experienced other damage due to the statement. Key among these is statements that claim or imply someone has committed a crime, if in fact they have not been convicted of that crime. This is a frequent legal issue for memoir writers who are writing about incidents of abuse or trauma. Claiming that a living person effectively imprisoned you (kidnaping) or physically or sexually abused you (assault, rape) can constitute defamation per se if that person was not in act charged and convicted of that crime — even if, in your opinion, the acts they engaged in ought to have been considered crimes. If your gossip includes the lush tidbit that Sadie’s husband’s paramour is under age, then assuming that Sadie’s husband has not in fact been charged and convicted of child sexual assault, he can sue you for defamation—and win—without even having to prove that people stopped coming to his store because of you and your gossip.

“….well, we know that he does watch porn all the time. That is absolutely true.”

The fact that something you write or tell other people is “true” may mean you can’t be successfully sued for defamation — but you can still be sued for invasion of privacy. The private life of a person who is not a “public figure” (celebrity) or “public official” is just that: private. An average Joe or Jane who watches legal porn at home, or wears their underwear three days in a row, or never washes the dishes, or tells their spouse how much they hate their workmates, has a reasonable expectation of privacy in those facts. A tell-all exposé or ranting memoir which exposes those private facts to the world, placing a private person in the public eye in a negative light, is an invasion of privacy, and you can be sued for it. A spouse has a reasonable expectation of privacy within their marriage; when the now-ex-spouse writes a memoir trashing their ex an recounting all the bad things he said about other people and all his bad habits in the household, he can sue or invasion of privacy—whether or not it’s true.

Four steps to minimize your liability as a writer

There are a number of things you can do as a writer to minimize your liability for defamation and invasion of privacy lawsuits. The first, of course, is scrupulous accuracy. The second is to familiarize yourself with defamation and invasion of privacy law—and know that these laws do vary somewhat from state to state. For example, some states protect the privacy of deceased people, and others do not. Laws about when you can record conversations, and whether those recordings violate privacy, also vary from state to state. The third thing is to obtain writers’ insurance, either through one of the national writing associations or through your local insurance agent. News and current-issues features publications and media are heavily insured; i you are writing for one of these as a journalist, make sure you understand whether and how that coverage applies to you.

Lastly, have a legal review of your manuscript by an attorney before you send it out for publication. An attorney can point out areas of your manuscript which may subject you to lawsuits for defamation and invasion of privacy as well as copyright infringement, military or governmental secrets violations, or contract violations (such as with a prior employer’s nondisclosure clause), and work with you to understand your risks and minimize your potential liabilities. Your attorney will ensure that you are informed of a range of options you can take depending on the nature of your writing and your personal risk factors.