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This topic has been discussed--but please advise me on this particular test case.

The title of the fiction novel is "Shorter of Breath" -- a reference to a lyric in Pink Floyd's "Time."

Chapter names have song lyrics and titles, such as 3: Look up to the skies and see 4: I understand about indecision
7: And if you listen very hard
8: Someone saved my life tonight

One of the subplots of this very silly story is a time-traveling group of novel characters who become music critic terrorists and decide to remove Starship's "We built this city" from history by attacking the band members in 1985. The band name and song are referred to, and occasionally quoted:

"A fictional character named Mucho from a Pynchon novel waved his beer and ranted to the assembly, “‘Corporation games!' 'Listen to the radio!’ How long will we have to accept this profanation!”"

How much of this should I remove / change / tweak / abandon? Thank you in advance.

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I would not do that. You are intentionally deriving from the song, using actual lyrics. If I were the songwriter, I'd turn Pink and contact my lawyer.

The mere title of your book might happen to coincide with that of the title of a song, providing that the title is sufficiently generic. I wouldn't hesitiate to title a book Help! but I would hesitate to title it She Loves You, Yeah, Yeah, Yeah.

  • But, "She Loves You" would probably be generic enough to be fine. – Jay Apr 17 '17 at 17:43
  • @Jay Agreed. At least in the USA (not sure about other nations) the title of a creative work, just as a title, cannot by copyrighted. Other considerations may apply, since copyright is not the only form of legal protection. – user23046 Apr 17 '17 at 18:14
  • IANAL, but I'd think a title would have trademark protection. i.e. copying the title of someone else's song for the title of your book is probably trademark violation. Iffy, perhaps, as songs and book are clearly different categories. I'd check with a lawyer before I tried it. – Jay Apr 17 '17 at 21:29
  • @Jay IANAL either. When I mentioned "other considerations may apply," I was thinking of Trademarks... However, that's a very flexible area of law, with numerous cases. For example, alhough I would title a book "She Loves You," I would NOT title the chapters "1. I Want to Hold Your Hand, 2. Ticket to Ride, 3. Day Tripper,... etc." Put together, that smells of Trademark violation, at a minimum. – user23046 Apr 17 '17 at 22:40
  • It's VERY unlikely that the songwriters filed for a trademark. This rarely happens for artistic works. – idiotprogrammer Apr 18 '17 at 15:45
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Well, here's some information from the page "More Information on Fair Use" at copyright.gov.

The law "calls for consideration of the following four factors in evaluating a question of fair use:"

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Your use may be of a commercial nature, but that doesn't mean it's not fair use. Since you're writing a novel, not a song, you are definitely "add[ing] something new, with a further purpose or different character", and your novel would not "substitute for the original use of the work".

Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

Songs are "creative or imaginative", so that doesn't count in your favor. But presumably the songs you're quoting have been published, so that would count for you.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely.

It sounds like you are using only a few words from each song, so this factor counts in your favor.

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work.

Your use is unlikely to hurt the market or value of the songs.

Summary

In favor of fair use:

  • You are using only a small and relatively unimportant piece of each song.
  • Your work is almost entirely new and different from the songs.
  • Your work probably won't compete with sales of the original work.
  • The songs you're quoting have already been published.

Against fair use:

  • Your work may be "of a commercial nature".
  • The songs are a "creative or imaginative" work.

Compare what you want to do to Campbell v. Acuff-Rose Music, Inc. Both of the "against" factors I just mentioned applied in that case, and not all of the "in favor" factors applied; nevertheless, it was held to be fair use.

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Titles (and I assume chapter titles) cannot be copyrighted. https://www.thebalance.com/can-a-book-title-be-copyrighted-3974593

If I were quoting at least half of the song somewhere, maybe I would seek clearance, but this sounds like a very superficial reference.

It would be different if you were taking a character or a dramatic situation created specifically for a song and made a different work. In that case, the song writer MIGHT be able to say that this was a derivative work. Let's say you wrote a movie that dramatized the life of Eleanor Rigby or the Wreck of the Edmund Fitzgerald. That would be such an example where the song writers could claim that yours was a derivative work.

Another issue would be if the song or title was trademarked, but that's also doubtful.

But you are not doing that. You are referring to a historical fact of a song and a band. That is certainly fair game.

Your comfort level with legal ambiguity might drive you to seek legal help, but I personally would take the risk on this matter. If you are publishing ebooks (not print ebooks), any conflict at worst would probably result in having to re-edit later versions.

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A data point for you, even within the time-travel subgenre: John Varley used the titles of other author's time-travel stories as chapter titles in his novel https://en.wikipedia.org/wiki/Millennium_(novel)

I found it no trouble to write a book with chapter titles borrowed almost exclusively from the long list of stories that served, in one way or another, as ancestors to this one."

Evidently, his publisher's lawyer's either raised no fuss, or secured the needed permissions.

P.S. Please don't judge the novel by the movie.

  • That's useful to know! Also, perhaps the use of multiple sources was influential. On the other hand, reliance on a particular source is asking for trouble. See, "The Wind Done Gone." – user23046 Apr 20 '17 at 20:53
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IANAL, but questions of this sort fall under the doctrine of fair use, which may differ from one jurisdiction to another. Generally, fair use says that there are certain exceptions to the protection provided by copyright law that allow people limited use of those material for specific purposes such as criticism or parody. Fair use is described here: https://en.wikipedia.org/wiki/Fair_use.

Of course, no one here can tell you with any certainty if your proposed use constitutes fair use or not. If you submit your work to a publisher, they are probably going to be extremely conservative in interpreting the fair use doctrine and are likely to insist on your getting permission from the copyright holder even in cases that you may think are clearly fair use.

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IANAL, but I personally don't see the issue... There are probably well over a million songs out there throughout the history of the modern era of music. Each CD has what 15 songs a minimum? If you were to go through every artist, big name or no name, each year, dating back to the first time lyrics were recorded on paper we would be in a lot of copyright troubles. The point being that... there are only so many combinations of words before they come up again. Even within lyrics, there are phrases that are repeated. Yes there are trade mark lyrics to a song as @RoBtA pointed out that pretty much everyone knows, but if you asked me to name what songs your chapter titles came from or even the name of your book, I wouldn't even have known they were from songs personally.

Definitely check with a lawyer about this or someone who actually has knowledge in the legal fields, but I find the titles vague enough that they can be passed off for as general phrases even though your inspiration was from songs. Everyone has inspiration, and that inspiration is usually found within the body of work you do. Painters inspired by Vincent van Gogh may show a little bit of his art style. musically... Blake Shelton (a country music singer) has been dating a female singer named Gwen Stephani (was in a Ska band later went solo pop). In one of Blake's songs, he made a reference to one of her CD titles when she was in No Doubt. "Gonna put a little Rock Steady on your hand" - Gonna by Black Shelton. While this isn't directly like yours... people still often use inspiration in their body of works.

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If the songwriter came up with the lyrics you use him/herself, and you use them as the title or even a chapter name, than that songwriter would probably sue you based on copyright issues. Don't risk it. The only way you could use them is as part of a character's speech, if that character is a big fan of the songwriter.

If you desperately want to use them in your title or chapter name, you might be able to twist a piece of lyrics slightly, keeping the same meaning, then use that. Maybe you can give that a try.

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