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).
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 ...
Sign in with your Lexis.com ID to access the full text of this article (approx. 30 pages).
Click here to order the full text of this article if you do not have a Lexis.com ID
Sign in with your Lexis.com ID to access Copyright Law resources on Lexis.com or any of these Mathew Bender Copyright Law publications.
Click here to order Copyright Law
treatises/resources and Mathew Bender publications.
View the LexisNexis
Catalog of Legal and Professional Publications
here for a list of available LexisNexis eBooks.
Click here to learn more about
For more information about LexisNexis products and solutions connect with us through our corporate site.