Fair Use & the Quotation of Song Lyrics in Fiction

Fair Use & the Quotation of Song Lyrics in Fiction

By Stephen B. Harrison *

*Notes Editor, Washington University Law Review; J.D. candidate, Washington University School of Law 2013.

Excerpt from Fair Use & the Quotation of Song Lyrics in Fiction, 11 Chi.-Kent J. Intell. Prop. 214 (Spring, 2012). 

 

INTRODUCTION

The question applies to a specific context: Should a fiction author be able to freely quote song lyrics in her work without fearing suit for copyright infringement so long as she has properly attributed those lyrics to the original songwriter? 1 At first, it might seem that these quotations would be permissible. While quoting with proper citation is standard procedure for academic 2 and legal writing, 3 however, this is currently not thought to be sufficient for writers of fiction. 4

In fact, the conventional wisdom for fiction authors is not to quote copyrighted song lyrics whatsoever in their work unless they have obtained express permission from the copyright holder. 5 Although there is currently no formal market for licensing the right to quote song lyrics in fiction, some authors have independently negotiated licensing arrangements with the copyright holder. 6 Because of these frequently expensive licensing fees, and the prospect of costly damages if found liable for infringement, 7 authors and publishers generally refrain from quoting song lyrics in their work. The status quo thus produces a "chilling effect" 8 on this specific type of intertextuality, 9 even as various forms of "transformative use," 10 such as musical remixes, 11 are becoming an important part of our modern creative economy. Unfortunately, there has been very little case law in this area 12 and almost no scholarship devoted to this type of iterative transformative use. 13

This Article proposes that, in certain cases, lyrical quotations by ...

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