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February 21, 2018 at 8:36 AM #96869Daniel HartParticipant
I write and produce a short-form comedic web series and I occasionally like to make references to popular songs by quoting their lyrics. For example, in one of my episodes a character was telling a story of how they were driving and got lost. The dialogue for that scene goes:
"On my way home, this song came on the radio that I really liked. So, I kinda started to zone out, you know… 'Gettin' lost in the rock and roll and driftin' away.' And I must have missed by turn 'cause when I came to, I didn't know where the heck I was."
That line "Gettin' lost in the rock and roll and driftin' away" is paraphrasing a lyric from "Drift Away" by Uncle Kracker. I'm not trying to claim that I wrote those lyrics, but I'm also not directly citing the original work. I think of it as an inside joke for anyone who's familiar with the song. I occasionally do the same thing with movie quotes.
My question is this, am I in anyway at risk of copyright or trademark infringement? I can certainly think of other films or series that make similar references ('Psych' and 'The Big Bang Theory' come to mind), but for all I know they may be obtaining necessary licenses for these uses.
To be clear, I'm not asking, "Can I get away with this?" I just want to know if it's wrong. I am not really concerned that I am going to be sued, since my little show is small potatoes. But, it's my small potatoes, and I want to be sure that everything is aboveboard. I'm already familiar with the ambiguous "fair use" doctrine, but I don't like to just plead "fair use" because I belive that many people misunderstand and abuse the purpose of it. I want to know if anyone has any firsthand knowledge or experience in the legality of making references to other works for comedic purposes.
Some additional information:
I am earning a profit from my series, as it is only available through purchasing on Vimeo On Demand.
We're not singing or using the melody of the songs, just the words. In some cases it's a paraphrase, in some cases it's a direct quote. But it's never more than one line, and it's typically used within the context of the scene to create some sort of alternative or double meaning (as in the above example).
Thank you in advance for your insight, and please let me know if you have any further questions.
February 21, 2018 at 9:40 PM #278321JackWolcottParticipant
Not being a lawyer I'm not going to advise you. Take a look at "fair use" on Google, especially the entry by a law professor for the Stanford University Libraries and in Wikipedia. If you're still in doubt, consult an attorney of your choosing.
February 22, 2018 at 10:33 AM #278327paulearsParticipant
If Daniel is in the UK – we have no 'fair use' keep out of jail. If you use intellectual property in any form – sound, images or words, then the person who owns them can object, and if they wish, seek redress. Would it not just be simpler and more honest to ask? I've done this lots, and sometimes it's just yes – it's fine once they know what it is all about. Other times they want a fee (large or small) and sometimes it's a blank NO! I co-wrote a somng in the late 70s about the Roald Dhal character, Fungus the Bogeyman. I asked and got a legal letter instructing me to cease and desist any use of the character's name, which was not at all what I expected. Fair Use – the often cited way around copyright in the US isn't that straightforward either – as there needs to be certain other elements in play – fair use in examination, parady or analysis seem straightforward, but just using it isn't fair use at all? We have an on-line court system in the UK, and now we have an intellectual property court too – so taking people to court is quite cheap and simple.
February 22, 2018 at 11:30 AM #278329JackWolcottParticipant
Well, just to set the record straight, Fair Use isn't "the often cited way around copyright in the US" as you suggest but is, in fact, a provision in Copyright law. And you're right, its use and limitations are very specific. Another way Daniel could stay legal if Fair Use seems too complicated or not applicable to his situation would be to put the short sentence in quotes and attribute it to its source and author at the end of his video piece.
Unfortunately here in the U.S., "just asking" is often all but impossible. Publication rights, sync rights, performance rights, etc., frequently are owned by more than one entity and can be very difficult to track down. Many years ago I spent six fruitless weeks trying to obtain permission to use a Firehouse Five Plus Two recording. After speaking with four different agents and spending hours on the phone I finally gave up. No one knew for sure who owned the rights I needed and there was no public record to which I could turn. Sometimes being honest isn't easy but respecting intellectual property rights is important and we must make every effort.
February 23, 2018 at 6:12 AM #278331paulearsParticipant
I had similar issues with permissions for using a Lionel Richie track – the UK application process got me quoted a lot of money by the guy who did the orchestrations but eventually we got the permission for a very, very low figure because Mr R himself got to hear of it, and it turned out that the person we'd been dealing with here had a buyout contract and had no rights claim at all! I also founds quite a few very large firms, who, finding out that circulation was very limited, told us verbally to just do it, because the legal costs were higher than the rights clearance – but they wouldn't put it in writing. Never easy!
I do notice on youtube quite a few copyright questionable items, with crafty wording designed to 'convert' it into something covered by the fair use rules – when really they're just rights controlled items pinched and stuck up on youtube.
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