Artists frequently wonder about specific copyright and trademark problems. Using song lyrics or titles in your art is a prevalent concern.
So, can you lawfully utilize song lyrics in things you sell? The answer is yes as long as you follow through with all the trademark and copyright protocols.
Trademark and Copyright
You should always start with the assumption that if the creative work you intend to employ was originally published after 1923, it is protected by U.S. copyright law.
A work produced after 1923 is not protected in one of two ways:
- either the owner of the work committed a mistake such as failing to renew the copyright
- the work does not fulfill the minimal conditions for copyright protection
A work that is not protected by intellectual property laws is in the public domain and can be used freely. The majority of works that enter the public domain do so due to aging. You may freely include the lyrics in items that you create and sell. PDinfo.com has a collection of public domain and royalty-free songs.
You cannot use the words to current songs without explicit permission from the songwriter or the music publishing company/record label.
Even if you want to put the song lyrics in the artwork and credit the singer/songwriter, you must still seek formal authorization from the songwriter or music publishing company/record label. Similarly, you cannot utilize a section of the lyric since it is part of a copywritten work.
Song titles, in general, are not covered by copyright since they are short and not distinctive. But certain current song titles and lyrics may be trademarked as well. A search on TESS might be useful.
Fair Use
Your use of creative work may nonetheless be legal if it is protected by intellectual property laws. This is because each of the rules safeguarding creative work has exceptions in which authorization is not necessary.
Fair use allows you to reproduce limited amounts of work for specific purposes such as study or criticism. Scholarship, research, and teaching may also qualify as transformative uses if the work is subject to review or discussion.
The question is whether the material was used to help produce something new or if it was just copied verbatim into another work. When using elements of copyrighted work, consider the following:
- the original work altered by the addition of fresh expression or meaning
- fresh information, aesthetics, insights, and understandings added to the original
Factors Affecting Legality
The danger of being sued is determined not just by your specific usage, but also by factors such as the possibility that the use would be discovered, whether you are a worthy target for litigation, and if the opposing party is eager to suit.
Four factors play a role in lawsuits:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the piece taken
- the effect of the use on the potential market.
The Conclusion
Unless you are positive that the item is in the public domain or that your usage is legally permissible, it is worthwhile to obtain permission. If you are unsure, you must either analyze your risk or seek the counsel of an attorney experienced in copyright or media law.
