Advance Lyrics

July 9, 2005 10:45 PM

What are the legal ramifications of sharing the lyrics of a song on an album that has not yet been released?

MP3 blogs post advance tracks all the time, but even that seems to be walking on flimsy legal ground. If I were to post on my blog the lyrics of an unreleased song, could I get into any trouble?

posted by themadjuggler to Law & Government (12 answers total)

Released or not, you are potentially liable for quoting more than a small piece (definition variable) of a song lyric on your blog, and even if you post the small piece, give full copyright notice and say something about the quote, since analysis is a basis for fair use. Will the publisher come after you? More likely if it is an unreleased song, though if it's been publicly performed the lyrics are hardly going to be top secret. But overall, it's unlikely. Depends, perhaps, how popular your blog is and whether it makes you money. The standard test is "do you harm the value of the work." By reprinting, for free, the entire song lyric in advance of its commercial publication, a good IP lawyer could nail you to the wall if s/he wanted to. Have you tried to obtain permission?
posted by realcountrymusic at 10:49 PM on July 9, 2005

Response by poster: Wow, thanks for the quick response.

1. My blog is neither popular nor profitable, but the front page is google-able.
2. I plan on analysis.
3. Would asking for permission be incriminating/asking for a lawsuit? What if it's an advance CD I'm reviewing for college radio?
posted by themadjuggler at 11:02 PM on July 9, 2005

Pre-release infringement of a song or lyric is seen to be even worse than after release, because it is the prerogative of the composer (or publisher) to choose how their song is first put into action. No other artist, for example, is allowed to perform a song until it has been commercially released.

My prediction is that you would be asked to remove the lyric as soon as it is discovered, unless it was the very smallest "fair use" quotation.
posted by skylar at 2:17 AM on July 10, 2005

Chances are, if your blog isn't popular, they'll never see it. Even if they did see it, in all likelihood you'll get a "ooo scary" legal letter saying you have to remove it as skylar mentioned. The chances that you would actually get sued are very slim, because they would have to go to considerable expense to take you to court, hire a lawyer, etc. Not to mention, they wouldn't have much to gain from suing an individual anyway. Maybe if their lyrics were prereleased on Yahoo!'s website, they would have a good case, and a worthwhile target.
posted by banished at 2:29 AM on July 10, 2005

Would asking for permission be incriminating/asking for a lawsuit? What if it's an advance CD I'm reviewing for college radio?

If you are a radio DJ and have a legit advance copy, presumably it was sent to you for review, and I would feel pretty safe quopting SOME of the lyrics in said review. You're never truly legal quoting an entire song, period. Likelihood of getting busted may be slim, but people do get sued. I thought you had come by the CD illegitimately. If they sent it to you as a DJ, you can in good faith review it and quote from it, in my opinion. I am not a lawyer.
posted by realcountrymusic at 5:55 AM on July 10, 2005

Response by poster: I am a college radio DJ and I often get advance CDs for reviews, but, yes, this one did cross my desk illegitimately.
posted by themadjuggler at 6:00 AM on July 10, 2005

I am not a lawyer (and I do not use silly internet acronyms), but the people who wrote this are lawyers:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

You, themadjuggler, will have to decide for yourself whether your use fits the bill.

Here's what I would do if I were you, but I am not, as I have said, a lawyer, so I could be verrry wrong:

To be safe (and to be interesting, to tell the truth), you should comment on the lyrics, perhaps line by line, to show that you are using them for "nonprofit educational purposes." You are publishing them to discuss the artistry of the piece. You are criticizing them.

You might also want to quote only the interesting parts of the lyrics. If you don't have anything great to say about a couple of stanzas, or if they only reinforce what you've shown by analyzing the first stanza or two, don't quote them, or at least don't quote them in full.

I don't see how the band could show that you have harmed the potential value of the lyrics if your posting increases positive interest in the upcoming release of the recorded work and does not discourage people from buying it. But if you release something embarrassing that they intend never to release, you could be hurting their reputation and therefore their income. A smart lawyer would calculate how much income they lost because of your publication of the embarrassing lyrics and send you the bill.

I wouldn't know what to do about receiving the lyrics "illegitimately" (illegally?), if that is indeed the case. Maybe I would say I received them from an anonymous but somehow (?) credible source or I found them in the garbage behind the recording studio. But if you stole them, maybe you should just stay the hell away from this thing.
posted by pracowity at 7:21 AM on July 10, 2005

Academic publishers are very neurotic about pop music lyrics. Basically, no more than 2-4 lines (you can do a lot by paraphrasing interspersed with a few words here and there), a full boilerplate cite of the copyright notice, and you must actually discuss or analyze what you quote. But even then, most book and journal publishers will require you to obtain permission, which will sometimes be costly, if you can get the attention of a rights holder at all. Websites tend to play fast and loose with this stuff, but the higher your profile, the more readers you have, and the more you have to lose, the more you might worry.

Excellent discussion of the whole issue is on the website of the International Association for the Study of Popular Music here.
posted by realcountrymusic at 11:32 AM on July 10, 2005

themadjuggler, seriously, this happens all the time. On a Nine Inch Nails website we were discussing lyrics to half the songs on the new album weeks before its official release.

As to how we knew those lyrics, I will leave as an exercise for the reader.
posted by dhartung at 1:26 PM on July 10, 2005

Well, there you go. You can do it on the up and up or you can just do it. Seeing as you're talking about a blog with very low readership, maybe just doing it is appropriate in this case. They'd lose more money just paying a lawyer to send you a letter than they would ever lose by letting you publish the lyrics. It's better for them to just pretend you don't exist.

But everyone should read that link realcountrymusic posted. It makes music publishers sound like dicks. I know, surprise, surprise, everyone knows they're dicks. But I mean like, well, like the dicks that dicks would have if dicks has dicks of their own. I'm not surprised that the music industry tries to make a buck by selling its commodity to the common consumer of that commodity, but I am surprised that corporations prevent scholarly works about that music by pricing quotations out of the normal range of scholars.
posted by pracowity at 1:59 PM on July 10, 2005

You might want to read the Family Entertainment and Copyright Act of 2005, signed into law by the President in April. Read especially carefully section 103, which provides for criminal penalties for infringement of "a work being prepared for commercial production."
posted by monju_bosatsu at 3:02 PM on July 10, 2005

Response by poster: Awesome advice everyone, thank you. I think I'll just cite a few stanzas with interpretation and put most of it behind a cut (thus, onto a page that cannot be googled). My profile could not get lower, and I doubt they could say I'm harming them.
posted by themadjuggler at 4:56 PM on July 10, 2005