Deja vu…

/ 8 October 2007

And so it goes AGAIN. I have just gotten off the phone with the person at Hal Leonard Corp. who handles the lyric reprint requests for EMI Publishing, which is the company who publishes the Indigo Girls’ albums.

I have been trying to get permission to use a very short excerpt from an Indigo Girls’ song in a chapter of a book I’m writing:

And the greatest gift of life is to know love
And I don’t know where it all begins.
And I don’t know where it all will end,
We’re better off for all that we let in…

(This excerpt is from their album, All That We Let In.)

The publisher of this forthcoming book, Krieger Publishing, does not want to risk any litigation that might occur were this use to be contested and so wants to make sure we “tie up” the permissions clearly in advance. I am fairly sure that this use would be considered fair use and is an appropriate citation in the context of the chapter I’ve written, but I am not a lawyer — and I learned the last time something like this happened, that even having a lawyer is not enough to convince a publisher. So I’ve been patiently pursuing the permission — not an easy task, since it’s often hard to figure out who actually owns the rights to a lyric in print form.

In this case it’s clear that the Indigo Girls do NOT own the rights, even though they wrote the song. It’s taken me a while, but eventually I went through EMIPublishing and got to Hal Leonard Corp. They, in turn, have informed me that IF they decide to allow us to use this miniscule excerpt, it will cost — at a minimum — $100. There is no way that I can afford to pay that fee. Frankly, there’s no way the publisher can afford that fee.

So, ONCE AGAIN, I will be excising from a piece of academic text, the lines of a popular song lest the publisher of said academic text be sued.

If you can sense my anger and frustration, you’re right. This is yet another example of the ways in which the out-of-control copyright regimes in this country have a “chilling effect” on various forms of critical engagement.

2 Comments

efc commented on 10 October 2007:

I am so puzzled by this, Mary. It seems to me that including a quote from a clearly attributed Indigo Girls song in your book can do no harm to the Indigo Girls, and in fact can only serve to help spread the word that their music may be worth listening to. Why on Earth would Hal Leonard Corp. work against the interest of its artists? They should come to their senses and offer the quote to you for free. But don't hold your breath.

I am also puzzled at the cowardice of your publisher. Krieger Publishing should understand copyright law and the limits of fair use, after all, they must defend the works they publish as well. Fair use is not a right, only a defense to be used if one is sued. First of all, the likelihood of Hal Leonard Corp. suing over this kind of use is miniscule. And if they did sue, the case would be judged on the four factors of fair use. I went to the University of Minnesota's library web site and did a quick analysis of this case. I don't think anyone could expect to be sued here, or to lose the case if they were... http://www.lib.umn.edu/copy...

The following is my own analysis, go try one yourself. The "you" below is me.

The information below summarizes your four-factor fair use analysis. This summary is not conclusive, but is intended to help you make your own reasonable and well-informed decision.

A thorough fair use analysis is based on balancing the four factors. As you consider and examine each factor by itself, you also need to weigh the four factors against one another. At times, some factors may weigh more heavily for or against fair use than others. For example, even if the first three factors weigh in favor of fair use, the weight given to the fourth factor may tip the scale against fair use. It is the balance of the four factors that should guide you when deciding whether your use is a fair use.

Document to be copied: Indigo Girls lyrics
Date: 10-10-2007

Summary: Favors Fair Use

Your analysis of the four factors suggests that your proposed use favors fair use. An analysis that weighs favorably toward fair use supports this use of the material under the circumstances you described without getting permission from the copyright owner.

Detailed Report

In determining fair use there are no simple answers. Each use is dependent on the conditions for that use. After considering and examining the four factors, the factors need to be weighed against each other. No one factor makes the use fair or unfair. And, at times, depending on particular circumstances, some factors may carry more weight than others.

Factor 1: You've analyzed purpose to be somewhat against fair use.

Weighs Against Fair Use: Profiting from use

The epigraphic nature of the use is not really transformative in any way. There is an ever so slight profit involved, but not really in any way due to the use of the lyrics. Still let's let this one lean against use.

Factor 2: You've analyzed nature to be neutral towards fair use.

Favors Fair Use: Published
Weighs Against Fair Use: Creative, artistic, fiction

This is pretty neutral. While the song is published, it is also a creative work. In fact, the use is in some ways mood-setting, acknowledging the special poetry of the piece being used. Let's say these two attributes neutralize one another.

Factor 3: You've analyzed amount to be somewhat favorable towards fair use.

Favors Fair Use: Small excerpt, extract, or clip; Only portion needed for favored purpose
Weighs Against Fair Use: Portion used is heart of the work

You are only quoting a small portion of the song. But it is the refrain, the so-called "heart" of the work.

Factor 4: You've analyzed market to be somewhat favorable towards fair use.

Favors Fair Use: One or few copies made; Use stimulates market for original work, no impact on market

If anything, the use of this quote will stimulate the market for this song. Besides, your book will not be a bestseller, so the number of copies being made will be trivial. Still, this is balanced by the fact that the owner does have a license mechanism available, just one that does not provide a license at a reasonable price. (What would that be, by the way? $10? $20?

timbulkeley commented on 12 October 2007:

...but then copyright (even more than the mainly rhetorical "property") is theft...