Saturday, October 10, 2020

Fictional characters quoting real people

This one is about if copyright [or any other kind of] permission is needed for quotes associated with living people, or from the 20th century, particularly if such quotes are mentioned in biographies that are still under copyright.

People sing ‘Happy Birthday’ to their friends and family all the time, and half of them sing it twice while washing their hands, but until recently if you wanted to sing it even once in a movie you had to pay royalties.

I’m wondering what about if, say, a baseball-mad MC were to say things like “As Yogi always said – you can observe a lot just by watching.” Or a protagonist who, while facing a choice, thinks of the Madeleine Albright quote, “I have had fun being who I became, so to speak.”

Is it OK for a fictional character to quote real life people? Or, if the book is published, does it then need formal permission? 

Quotes like the examples you used fall under fair use, which is a slippery little thing and you need to be careful.

You can quote Martin Luther King saying "I have a dream" but you can't quote more than a few lines of the speech itself. Which is something the producers of the movie Selma found out the hard way.

You can quote lines from the blog, but you can't cut and paste an entire blog post and publish it.

Fair use means small pieces of a work, properly attributed.  When you use song lyrics, or poems or large chunks of someone else's work the lawyers start sniffing around.


Steve Forti said...

Is there a common definition of the line not to cross? I imagine a character saying "use the force" when teasing their friend is fine. But what about other fictional references less widespread? Or someone mumbling a line from a song?

KMK said...

Our Shark, I'm sure, is far better versed in this than I, but my understanding is that the line for fair use is much more slippery in song lyrics. That's in part because the music industry has terrific lawyers. In a mystery involving a disc jockey, I ultimately decided to use only song titles because they're unquestionably fair use...and made up lyrics for the "our song" of the main characters. I didn't want song rights to be the reason the MS didn't sell.

Melanie Sue Bowles said...

I read somewhere that a phone company was going to put "E. T. phone home" on coffee mugs or something. Warner Bros stopped them. It's very tricky what crosses the line and what doesn't.

I wanted to use a quote from one of my favorite authors in my 2nd book. My publisher said, just to be safe, let's get his permission. I thought they were going to contact the author, but my editor told me to do it. GULP! And I got all geeked out fan-girl. This was back in the dark ages, before social media and blogs. We actually chatted on the phone and it ended up being pretty cool. At least I though it was pretty cool - he may have been rolling his eyes.

Do your research!

Craig F said...

Deja vu all over again?

I've tucked that into a few places.

Craig F said...

Oh, stay away from Disney stuff (unless you are doing fan fiction of Star Wars or Mandoralian) they have been known to sue house owners for murals on their kids' walls.

They also have been know to confiscate those Star Wars and Mandoralian things.

Colin Smith said...

When lines or phrases become part of pop culture ("You had me at hello," "I'll have what she's having," "May the force be with you"), especially with the passage of time, I imagine it becomes harder to sue for use. It would be like Kellogg's suing every time someone referred to "Corn Flakes."

But as others have said, it always pays to be sure. Check with the lawyers.

That's my take. And I stand by the above quote. You have my permission to use it. :)

shanepatrickwrites said...

This may be cynical but, it probably has most to do with the legal team behind whatever you think is fair use. Yogi Berra’s family doesn’t have Harvard grads on retainer. Pick your battles. Also, you’re a fiction writer. Make it up.

Brigid said...

Megan Whalen Turner lifted a whole sentence from Diana Wynne Jones as a tribute. Then again, I think they were friends, so maybe she had permission.

Relatedly, her sixth Thief book just came out! Megan Whalen Turner has shaped my writing the way Diana Wynne Jones shaped hers, so this is a cause for rejoicing in my house.

E.M. Goldsmith said...

I was toiling with this very question for one of my four WIPs - the Pandemic has pushed me over the writer's edge of sanity. I wanted to quote a bit of a Bruce Springsteen song, "Jungleland" - I want to understand. Can I quote a couple of lines or with song lyrics as long as they are attributed? In the instance I am thinking of involves a character singing along to song he is listening to under headphones - or should I leave it alone? I notice others use this device - is it a mess? Or am I ok with the lines

In the tunnels uptown
The Rat's own dream guns him down
As shots echo down them hallways in the night
No one watches when the ambulance pulls away

Or is a team of lawyers about to descend on me and take away my life savings?

Fearless Reider said...

E.M. Goldsmith, I'd buy your book based on that quote alone. I feel like Bruce would be cool with it, but I suppose his attorneys might disagree.

I really appreciate this question (and answer!), but I'm still puzzled about what constitutes "small" when it comes to fair use. My novel has a couple of one-line epigraphs that probably pass muster with ease, but there's a lengthier excerpt from a psalm in in one of the chapters, and I know that biblical translations are copyrighted, so I'm guessing I'll need permission for that one?

Android Astronomer said...

Another aspect of fair use is that the use must be transformative.

This means that you're not just quoting essentially to say "what she said".

For your use to be transformative, you must be quoting to render an opinion on the quote, to parody the quote, or to use the quote for a purpose outside the scope of the original quote.

Having a character in a novel tell another character to "use the force" in an irreverent manner unlike the way it was used in the film is probably transformative.

In fact, my use of it here to illustrate transformative fair use is probably itself transformative.

And I say "probably" because:

A. I'm not a lawyer. Please don't depend on anything I say to stay out of jail.


B. Even lawyers and judges often (as in REALLY often) disagree on what constitutes transformative fair use of copyrighted material.

I agree with shanepatrickwrites that the best solution is to avoid it altogether. In my recently-completed novel, I needed two complete poems. I wrote them both, though there were many online I could have used just as effectively. And in my first novel, my MC wins the (not so coveted) Montrove Peace Prize.

KMK said...

E.M., just for perspective: when I was researching for my Vermont radio mystery, I found a case where a writer had to pay more than a thousand dollars to use one line of a fairly well-known song -- and enough similar cases to make it clear that this was not an urban legend. I really, REALLY wanted a particular song for my MC and her man, but there was no way I could go up against that. So I came up with my own lyrics...and was absolutely shocked to realize that they fit the characters better anyway. Just my own experience.

smoketree said...

This might be obvious, but for books not published in the US, copyright law can be quite different. Canadian copyright, for example, doesn't include the concept of "fair use" so you have to get permission for pretty much everything (ask me how I know).

In general, copyright law is pretty slippery and there are many grey areas. It often comes down to a few factors: how much is the copyright holder willing to pay to enforce copyright; how prominent is your use of their material going to be; and does your use in any way interfere with the rights holder being able to benefit from their IP. Of course, you also want to make sure to do the decent thing and not borrow big chunks of someone else's work without their permission.

Dena Pawling said...

Apologies for the length of this post

Disclaimer - This is NOT legal advice. It's informational ONLY. For legal advice, consult an IP attorney.

If you want to quote something in your book, it is NOT OKAY to simply provide a credit in a footnote. Here is a good link to get you started:

Here's the analysis your lawyer will do [US law only]. Let's use EMGoldsmith's example -

Character singing along to song, with headphones
4 lines from song

1. The purpose and character of your use

Is it transformative, new expression, new meaning, value added, education, commentary? For example, parody is new expression.

An IP attorney knows the basic case law, but will still research to see if any cases are close to EMG's situation.

2. The nature of the copyrighted work

Are you using factual info from non-fiction, or made-up from a creative work like a song or novel? Was the work published or unpublished?

The song is published [a plus], but it is creative [a minus]. More research.

3. The amount and substantiality of the portion taken

What percentage of the entire work did you use? Was the portion you used the "heart" of the work?

This is where song lyrics usually stumble. A song is relatively short, and taking four lines, especially if those four lines are the "heart" of the song, is usually a problem.

I'm not enough of a Springsteen fan to know whether these four lines are the "heart" of the song, but I did the math: The song is 72 lines and 379 words:

4/72 = 5.5%
28/379 = 7.4%

This is a long song. For example, Shakira's "Try Everything" is only 42 lines and 273 words. If that's the song EMG was using, the percentages would be higher.

Case law specifically says 10% is NOT a bright dividing line, and each situation must be considered individually. More research [read: $$].

4. The effect of the use upon the potential market.

Will your use deprive the original creator of sales/income, either present or future? Is the original still available for purchase? Does your use impact authorized uses of the material? Does the public confuse yours with the original?

I see this last item as the only one that, on the surface, factors in EMG's favor. But she will still have to pay her attorney to advise her [the better approach] or defend her in an infringement case [not preferred].

My firm bills $425 per hour. We do both transactional and litigation work in real estate law, landlord/tenant, wills, trusts, probate, and business law. An experienced IP attorney probably bills at a higher rate.

A "quick" search might take 2-3 hours [my usual estimate for "quick" or superficial research if the answer isn't obvious]. Therefore, if EMG comes to me for advice, it will cost her approx $1200 to learn that, after a quick search, I DO or DON'T recommend using those four lines without obtaining permission.

If EMG comes to me after she's been sued, I will require a $10,000 deposit with no guarantee that this is all the money that will be required to defend her. Even if she wins, that's a lot of cash. And if she doesn't win, she still had to pay me PLUS pay whatever damages the court decides is due to the rights holder [not preferred] or the agreed settlement amount [usually the better approach].

It's much less expensive to obtain permission in advance and pay the licensing fee, assuming that you'll obtain permission.

PRO TIP - Don't even THINK about using anything to which Disney owns the rights.

As much as I appreciate the "full employment for attorneys" philosophy, I'd really prefer my clients ask for advice BEFORE doing something that their gut is warning them about.

Julie Weathers said...

I quote real people in Rain Crow all the time because there are real people in the story. I'd rather use their own words when I can and certainly try to capture their way of speaking, personality. Of course, my people are long dead and don't apply in the asked question, but I've wondered at times if people are going to say, "I read that in Gods and Generals or she copied that out of the movie Gettysburg" or whatever when it's just historical speech.

A Civil War site I follow on Twitter posted a quote yesterday and attributed it to the author Jeff Shaara. I found it odd because it's actually from the Gettysburg Address by Lincoln.

The song lyrics I use are long out of copyright.

Mister Furkles said...

Wot? No "Puff the Magic Dragon"? -- Lived by the sea - and well that's all you get.

John Davis Frain said...

E.M. ...
We gotta stay cool tonight, Ellie, cuz man, we got ourselves out on that line. What I'm trying to say is--

The Venn Diagram of Springsteen fans crossed with ardent readers is similar to a total eclipse. That is, research shows (my research, but still) that fans of Jungleland, especially poets down here who don't write nothing at all, tend to gobble up books. So even if you lose, you'd win due to all that publicity to your ideal audience.

So go for it. The worst that could happen is you'd wind up wounded, not even dead. Then tomorrow there'll be sunshine, and all this darkness past.

I'm not a lawyer, nor do I play one on TV. I'll bill you at $4.25 an hour if you need me to recite some more Springsteen lyrics.

Kerry said...

Many thanks to Janet for the sage reply and also thanks to all for the heaps of advice and ideas in the comments. It’s very useful. This seems even more of a minefield than I had realized.

I’d thought a quote or two would be ‘fair use’ especially if, like Colin Smith mentions, they have become part of everyday use.

On the other hand, many are so well-known they might almost be considered a kind of complete work in themselves. So I started wondering if quoting quotes would be viewed more like using lines from a song or poem. - Started going round in circles.

Maybe like a few have said, I’d be better off making up my own. Some people say things so well though! But better safe than sorry. I’ll be having an extremely analytical look at how I use anything now, with a keen eye on copyright laws, while playing around with alternatives..

And learn more about the interpretation of ‘fair use’.

Android Astronomer – the Montrove Peace Prize sounds very prestigious! I’m sure I’d covet it.

E.M. Goldsmith said...

Dena Amazing work there. I have decided NOT to use the Springsteen lyrics and maybe just say that Ash was listening to Springsteen under his headphones and let the reader fill in the lyrics, song as they feel the need given the trolls in Brooklyn scenario of this particular bit of action. Can I refer to a real artist in my fiction?

Man, I really should stick to my fantasy worlds. This real one is no fun at all. Especially recently.

John Davis Frain. I could quote Springsteen all night but after Dena's comment, I am scared to do that. Does Disney own Springsteen like they own everything else? Will I be sued? Will lawyers come after me for the high school paper I wrote that claimed Springsteen should win the Pulitzer for poetry for his lyrics? Nope, I will not be quoting songs in my books that I did not write myself.

So, do editors pick up this kind of thing before you go to publication? I am guessing a good editor would know all the stuff Dena just said and say, hey, cut that out. I don't guess publishers enjoy having their authors get sued over this kind of thing.

And shouldn't Springsteen belong to everyone? I'm just saying...

Dena Pawling said...

>>I don't guess publishers enjoy having their authors get sued over this kind of thing.

General litigation strategy is to "sue everyone". Plaintiff firms follow the money. Who's getting paid for the unauthorized use? The author, check. The publisher, double check, because the publisher generally has a deeper pocket than the author. So the lawsuit isn't just against the author. It names the publisher as a defendant also. You can trust me that the publisher does NOT appreciate being named in this lawsuit, especially because it's likely your contract, which you signed with the blood of your firstborn, had a clause that stated "author represents this work is entire his/her own work and not infringing on another's rights" or similar. It may have even included an indemnity provision which means not only do you have to pay MY attorney fees to defend YOU, you also have to reimburse the publisher for ITS attorney fees. And I guarantee their attorneys bill at higher rates than I do.

Not pretty. Contact Springsteen's agent and ask for permission. Or write "Springsteen blared from Ash's headphones. He bopped along with the tunnel rats." Or something similar to give the reader a non-copyrighted clue as to which song he was listening to.

Leslie said...

My understanding is that when quoting from books, you need to get permission from the publisher of those books -- unless the authors hold the copyright.

Android Astronomer said...

Unknown: It IS a minefield, and best left untrodden. Untreaded? You know what I mean. Don't go there if you don't have to.

If it helps, my process was to Google proper names until I found one that returned NO hits. I finally settled on "[FIRST-NAME - which I won't reveal since my novel isn't published yet] Montrove" because it didn't even get any tangential hits with Google, like asking "Did you mean Montessori?"

ALSO: Don't dismiss the possibility of creating a fictional pop star and writing your own lyrics. I'm no poet, but the poems I wrote are not bad, and better suited for my story than anything else I found. You would probably surprise yourself with what you can come up with.

ALSO TOO: Editors are really good at catching this kind of thing, but never absolutely count on it. And don't think that too much of it, or too much reliance on it as a plot point, won't lead to outright rejection while on submission.

istara said...

Do not quote song lyrics. It's not worth the hassle. No matter how cool the musician may be, they have hungry lawyers working for them.

In all honestly I think they shoot themselves in the foot, because it means their lyrics/songs/identity doesn't get exposed to new generations. But so be it. The artist's loss is frankly greater than the author's, since using the lyrics won't add 1000s of dollars of value to your book, but they're losing potential free marketing. But maybe they don't need it or don't care about it.

If you want poetical quotes, just pick poetry that's public domain - there's oodles of it. Even quite "modern sounding" stuff if you dig around poetry archives long enough.

For non-US authors (like me) just go with US copyright laws. It's the biggest market and if you're sued anywhere, it will be there. It's almost impossible to publish a book without it being published/available in the US in some form.

Kerry said...

Android Astronomer - those are good tips. Thanks

I don't know why I'm showing as 'unknown'. I think blogger ate something.