Three years ago, I attended a music copyright panel discussion with my son, a music technology major. In a discussion about what constitutes “fair use,” a copyright lawyer sang 5 notes. All 40 people there knew that song immediately—the Rolling Stones’ “(I Can’t Get No) Satisfaction.”
Are 5 notes from a song with a few thousand notes fair use? No way, said the music attorney.
Just before publishing my first book, Successful eBook Publishing, I had a nagging feeling I should get professional advice. I used trademarked terms in the subtitle (Amazon and Kindle) and throughout the book. My copyright attorney, Valerie Nemeth, simply said to contact Amazon for permission.
Even though I am more of a “beg for forgiveness” type, I nevertheless did as I was told and was pleasantly surprised (and slept better) when they approved it within 48 hours.
But what if you wrote a memoir about how 22 specific books changed your life? That’s a lot of intellectual property! What if you want to use an entire poem, or quote books extensively? How do you navigate the copyright minefield? Are there rules of thumb we should follow?
In The Lost Chapters, Finding Recovery and Renewal One Book at a Time, author Leslie Schwartz faced these challenges and discovered some resourceful ways to resolve them. You’ll learn that there is a lot of grey area when it comes to copyright.
Here is Leslie’s story, and advice.
David: In your new book, The Lost Chapters, you talk about the power of literature to change lives, including your own. You quote novels and memoirs and poetry in your book to enhance your theme. Can you talk a little about your experience with copyright and using the work of other writers?
Leslie: As a writing teacher, I often receive manuscripts with lyrics from the Beatles and Rolling Stones, or quotes from famous poems or screenplays. The problem, I tell my students, is that all of these bits of intellectual property fall under copyright law. They are usually, but not always, owned by their creator.
Copyright law protects “works of authorship” which include literary works like short fiction, short stories, novels, nonfiction articles, poetry, and newspaper articles. But it can also apply to software manuals, symbols, names and song lyrics.
As writers we can’t uniformly use work that was invented or created by other writers. In The Lost Chapters, my new memoir about the way literature saved me while I was incarcerated, I quote extensively from published books in all genres. Before my publisher, Penguin Random House, published my book, they had to run it through the legal department to make sure I wasn’t violating copyright laws.
Generally speaking, your publisher will handle the legal aspect of copyright. If your work violates the law—you use lyrics without permission or quote too many words from another work without paying for the rights (there are limits set by law on how much you can use without paying for rights)— your publisher will tell you.
If you are self-publishing and you don’t have a publisher to provide copyright advice, and you do use the work of others, you would benefit by running it by a lawyer. For some interesting copyright infringement cases involving writers check out this article on Mentalfloss.
DW: Is there a specific example in this book where copyright became an issue?
In The Lost Chapters I quote many novels and long form nonfiction at length. I used one full length poem, by Mary Oliver, and quoted more than three sentences from long form narratives 15 times. I also used shorter quotes from novels and nonfiction books over a dozen times. Except for the poem, I did not have to pay the original writers in spite of this somewhat extensive use of their writing because of something called “fair use” laws.
There are many areas of fair use that need to be considered, including public domain. Anything written before 1923 is considered public domain and you do not need to acquire permission to use the work. However, everything I quoted was published after 1923.
Generally, publishers use a “rule of thumb” percentage, meaning the number of words you use compared to the number of words in the original book. The problem is that no such specific percentage exists to determine how much you can use. However, the guidelines that most publishers give to writers that seems to hold up legally is that 200-300 words is an acceptable amount to use from a full-length work without permission.
But what about poetry? The same general rule applies, but poems are usually shorter than novels. Therefore, the number of allowable words to use without permission is limited sometimes to one or two total words. Beware, however, because many poets do not allow you to excerpt without paying. This can get expensive, especially if you are using work from famous contemporary poets.
For a really clear and precise discussion on what you can and cannot use, check out Jane Friedman’s post on permissions and fair use.
DW: In your experience as a writer have you ever had any particular copyright issues that surprised you?
Yes. I have had three experiences that were surprising. In my most recent book, I quoted Mary Oliver’s poetry at length. My agent warned me that I would never be able to afford the rights to use those poems, but I kept on doing it in my draft, opting to worry about that later.
When my book was accepted and edited for publication by Penguin Random House, it went through their legal department and, as per my agent’s warning, I was not able to use any of the poems without permission. I contacted the rights agent for Mary Oliver and was stunned at the cost of using the poems – it was in the range of thousands of dollars. When I asked if I could excerpt, and pay a percentage, I was told that I could not.
But then something very interesting happened. The book I was quoting from was a collection of Oliver’s poems, and many of the poems within belonged to the publisher of that collection. In other words, the publisher of the collection had previously purchased the use of those poems through some financial configuration with the author.
Whether they paid outright for each poem or made sure the advance for the collection was suitable for Oliver in exchange for using them, I don’t know. But those poems did not legally belong to Oliver, and the publisher that owned them had much more affordable rights costs.
So I was able to purchase one entire poem for only hundreds of dollars compared to the thousands Mary Oliver was asking, simply because the rights were owned by someone other than her. The rest I paraphrased. But as Jane Friedman warns, there are even some instances of paraphrasing that could put you into copyright infringement. So even before you paraphrase you’d want to check with a rights lawyer as to whether or not you are in bounds.
I had another interesting encounter with copyright involving my first novel, Jumping the Green. At that time, I was fairly ignorant about copyright and I used “Before the Summer Rain,” a poem by Rilke. Because it was published in 1875, the poem is technically public domain. However, I used a modern translation which was subject to copyright.
In that case, while at first I thought I wouldn’t need to pay for the rights because the original poem was written and published in the 1800s, it turned out that I did need to pay for the rights to this translation because the translation was published in the 1970s. So I pointed up the few hundred dollars to use the translation of a technically public domain poem.
The lesson here; if it’s a translation, you will need to get the rights to the translation even if the poem was written before 1923.
And finally, this one came as a total surprise, but in The Lost Chapters, I quote a number of letters and emails. The publisher's lawyer wanted me to obtain written permission to use those letters. Some of them I was unable to acquire because these were jail inmates who’d disappeared after their releases. I had no way to find them. I published them anyway, because I was offered some protection when I changed their names in the manuscript.
So in every instance, it’s best to check with legal counsel, either provided by your publisher or your own lawyer before using intellectual property belonging to someone else. Even using one word of a song lyric, for instance, can be trouble.
You never know if paraphrasing will violate the limits of copyright, and you may find that what you believed would cost a small fortune to purchase, may be much less expensive depending on who or what agency actually owns the rights.
Don’t always assume rights are owned by the author. Just look at the mess between Paul McCartney, Michael Jackson and Sony/ATV regarding ownership of the Beatles’ music catalogue and you will see how confusing rights ownership can be.
About Leslie Schwartz
LESLIE SCHWARTZ (www.leslieschwartz.com), whose career as a writer has spanned nearly three decades, has been named Kalliope Magazine’s Woman Writer of the Year and won many awards for her fiction and community service as a writer, including three artist-in-residence grants from the LA Department of Cultural Affairs, the West Hollywood/Algonquin Award for Public Service in the Arts, an artist-in-resident fellowship at Arteles Creative Center in Finland, and a California Council for the Humanities Fellowship. In addition to her two novels, Jumping the Green and Angels Crest, Schwartz has published her memoir, The Lost Chapters; Finding Recovery and Renewal One Book at a Time. Her essays and articles have appeared in Salon, LitHub, The Rumpus, Brevity and Narratively Speaking. She has taught writing at various universities and institutions and currently offers private mentoring and editing services.
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