Adriel Castaneda's picture
Adriel Castaneda from Van Nuys CA is reading Steve Jobs by Walter Isaacson October 29, 2011 - 11:29am

So as we all know, anybody in the writing field is always getting inspiration from different sources. It could be a movie, a song, a conversation, a painting. Anything. But where does it go from being inspired to ripping someone off. I have heard some songs, for instance, David Bowie's "Ziggy Stardust" and created a story out of it. Gave Ziggy a background, fleshed out the parts in between the song and so on. Now if I were to aknowledge at the beginning that this story is based off said song, is that allowable? Do I need to find a way to get permission from the artist, or label or whatever? Or change character names but keep the plot the same? Or is that too Vanilla Ice?

misskokamon's picture
misskokamon from San Francisco is reading The Moonlit Mind October 29, 2011 - 1:11pm

Maybe not exactly the same as your situation, but I, too, have been inspired by a song. Stabbing Westward's "So Far Away" was a song that I've known for years, but it wasn't until 2007 that a line from the song squirmed into my creative bits and made made a baby there. I did a short graphic novel called  "Starry Skies." Because it was a school project that I only managed to work on for two weeks, I've been aching to turn it into a proper novella or something to do the story justice. I'll be doing just that for NaNoWriMo and renaming it "Space Between the Stars." While the song as a whole doesn't apply to the story, that one line--and the feeling of distance throughout the song--made the story what it was and what it will be. "Each night I feel the distance that has grown between us open up as lonely as the space between the stars." My main character will be referencing the loneliness of stars a few times in the story I'll be tackling, as he does once or twice in the collection of scribbles I call a graphic novel. 

I want to credit Stabbing Westward, but I'm with you--would I be infringing on copyright? Would I piss Chris Hall and his former band mates off by referencing that line, or should I keep it to myself? 

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs October 29, 2011 - 2:23pm

You only need to get permission if you quote song lyrics (although it's probably ok to quote one or two lines without permission). And in order to get permission, you will likely have to pay entirely more money than it's worth, so don't bother. Writing a story based on a song isn't copyright infringement. But if you commit copyright infringement by quoting a large portion of a song's lyrics and are a small press writer, it probably won't matter because the musicians won't ever find out. 

postpomo's picture
postpomo from Canada is reading words words words October 29, 2011 - 1:52pm

copyright law (depending on what country you're in) is pretty clear about how much of something you can quote, and in what context - reviews, parodies, and so on - and which parts are free and which you have to pay for.

Your idea is derivative, and in and of itself you wouldn't be infringing on copyright (likely) - quoting bits of the song is another issue altogether, as Bradley mentioned.

Allusion is still allowed.

simon morris's picture
simon morris from Originally, Philadelphia, PA; presently Miami Beach, FL is reading This Body of Death, by Elizabeth George October 29, 2011 - 1:52pm

You can quote up to 4 lines without permission, however, I do not know of a studio who wouldn't give permission. It isn't the artist. Remember, if you are hearing a song, it is from a producer. The artist gets a commission on plays. If you simply reference a song, they all thank you for the publicity.

You may even "steal" the title or a line as your title. But do give it credit even if you use only a few words. They can use the publicity and are flattered as long as the book or story isn't something your mother would be ashamed to see connected to your name.

If you ever notice, at the front of every book that references songs,m there is a section that will say something like: Permission to presenjt material from "Stardust" by Nat (King) Cole (1943) was obtained from Paramount Studios Records, Inc. That isn't a real citation butr you can look for them in many books.

I once wrote a short story that I titled, "It Rained all Night the Day I Left." As many people know, that is from the old minstrel song, "Oh, Susanna" by Steven Foster who died in 1864.  I credited it even though the song has probably been out of copyright for over a century.

The best way to think abhout what to do is ask yourself, what would you do if the shoe was on the other foot and it was your work that was used by someone else? Give them the same courtesy even if it isn't per legal obligation.

My wife had an article she had written years earlier published, without permission AND without attribution, in a textbook. When her publisher found out, the other publisher was ordered by the court to pull the entire run off the market and pay my wife damages for each copy that had already sold. When they republished it with the attributioon, they had to pay her royalties for every copy that sold and it was a successful textbook.

The checks didn't make us wealthy but it was the principle of the thing. That article, 20 years after publication is still being quoted in textbooks in her field and she gets little royalty checks every year from something that is rarely even remembered. Writing is property and as such belongs to the author for 72 years before it enters the public domain. So, my son and granddaughter will be receiving checks from it if it continues to be considered "state of the art" long after my wife is gone. She was about 46 when she wrote it and doesn't expect to live 72 additional years after that! That would make her 118.

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs October 29, 2011 - 2:26pm

I've known some writers who have asked whoever represents a musician to quote song lyrics and were told it was fine, but they would have to pay a couple hundred dollars.

XyZy's picture
XyZy from New York City is reading Seveneves and Animal Money October 30, 2011 - 7:08pm

@Adriel: It is difficult to say from what you have described so far without actually seeing the story, but as Bradley says, if you are quoting the actual lyrics in your story, you need to get permission. Also, if you are fictionalizing a song (which is what it sounds like you are doing; turning a song into a story counts as creating a derivative work, which is protected by copyright law) then you need to get permission.

As for your other questions:

Now if I were to acknowledge at the beginning that this story is based off said song, is that allowable?

You can say what ever you want at the beginning of your own story, as long as it's your story. For example Fargo has a notice at the beginning saying that it's based on a true story. It isn't, but there is nothing to stop the Cohen brothers from saying that it is. So you can say that your story is based on or inspired by whatever you want. Doing so has no bearing on whether or not you are infringing on someone else's copyright. Acknowledging theft beforehand does not mitigate the culpability of that theft, and as far as the law is concerned is the same as a car thief leaving a note saying, "I make no claim that this car is mine."

The reason you often see such notices is because it is part of the payment (and in some cases the entirety of the payment) to get permission to use the copy written materials contained within. But attribution by itself does not equal permission.

Do I need to find a way to get permission from the artist, or label or whatever?

Again, if you are using the actual lyrics in your story or creating a derivative work, then you would need permission from the copyright holder. If you do need to find out who has the copyright, then consulting with the label that originated the album (or whatever label is likely to have bought up that label in the intervening 40+ years) is your best bet. They are the easiest to get a hold of, and will often have or be able to find that information. Artist's agents will also be able to find that information. Since we are talking about a song that is over 40 years old, it is likely that the original licenses have expired and the copyrights have returned to the original artist. (But also this is the 70's, so it is possible that Bowie got bilked out of all his future rights... either way, his agent should know... or at least be able to find out.)

And what it will cost to get permission all depends on who the players are. Some people will only what recognition that your story uses their material, some are going to want cash. It all depends.

Or change character names but keep the plot the same?

Copyright law does not protect character names or plot lines. Nor does it protect titles. However, you have picked a particularly interesting song to ask this question about, because Ziggy Stardust was an entity created by Bowie that in many ways acted as a brand for his performances. So the question is whether or not Bowie trademarked "Ziggy Stardust". The act and name Ziggy Stardust isn't protected by copyright law, but it can be protected by trademark law, which I know close to nothing about. If it was just one song about a guy named Ziggy Stardust, that'd be one thing; but it was a concept album, and a series of tours that Bowie went around as "Ziggy Stardust", which completely changes the nature of the beast. I also do not know much about the interaction of trademark law and copyright law, like how much and in what way can you write about McDonald's in a story before they have a say in how you use their trademark. But I do know there is an overlap and at some point you can't do it.

Either way, in general you don't have to worry about plot lines. Plot lines (in the broad strokes of 'boy meets girl, boy loses girl, boys destroys the world in retaliation' kind of way) are just ideas, and are not protected.

 

 

@misskokamon Unfortunately, copyright law is not a finely tuned instrument. It is an axe, not a scalpel, so even your one line of inspiration, if quoted from another work, counts as copyright infringement. Even if you put an acknowledgment in. But on the other hand, if you were inspired to write an entire novella from the germ of one line, that's great and you don't have to use that one line at all. Copyright doesn't protect moods or themes, it only protects what's actually put down in a tangible form. If the song inspired a whole series of novels, that's great, as long as you don't use any of the actual lyrics in your stories. As I said above to Adriel, you can put anything in front of your story you want, as long as it's your story. And if you say that your story was inspired by a song, then I'm sure the artists would be flattered by it... I know I would. But, if you quote lyrics, you should get permission.

And this is all a separate consideration to what you can 'get away with'. Is it likely that anyone would care if you took a single line from their song and used it in a story... chances are not, especially in a small press setting. Copyright cases are usually civil cases (there are specific circumstances that turn copyright infringement into a criminal activity) and so are usually only brought to trial when the copyright holder knows about it and also finds reason and value in doing so.

 

 

@postpomo  American copyright law is actually one of the ones that is not specific on how much you can quote from another work, and it is all the better for this. The copyright act only says that how much and how substantial that use is should be considered when talking about fair use. No limits are set in stone, and the precedents on the past decades have been shrinking how much is allowable. And that is still only one of many factors in whether something counts as fair use: the nature of both the use and the original work, as well the effect of said use on the market value of the original work.

And yes, while the idea is derivative, derivative works are specifically protected in the copyright. It is in fact the second of the six exclusive rights protected. Otherwise no author would get paid when someone makes a movie based on their book. Or an audio book version. Or a comic series. Or a translation. All of these are derivative works and all of these are protected.

 

 

@simon  I'm not sure where you got the "up to 4 lines" rule, but fair use is determined on a case by case basis, so even if one judge once said "up to 4 lines" in regards to a specific case (while it is precedent and important in future cases of a similar nature) it is not a rule. And also meaningless in dealing with songs with less than four lines, for example, where "up to 4 lines" would allow free use of that entire song, and that's worse than no protection at all. That would also mean the same for all haiku ever.

There are no specific rules on how much can be used, only that the amount and substantiality should be considered along with other factors in making that determination... and attribution is not one of those factors.

And it's also (usually) much longer than 72 years before something enters the public domain. The term of copyright lasts for the duration of the life of the author plus 70 years (or 120 years in the case of a corporate copyright, which is why the most recent extension has been called the "Mickey Mouse Protection Act") I think that this is a ridiculously long time though, and a set time span would be better for copyright on the whole. These extensions of the duration of copyright is actually undermining the purpose of having a copyright in the first place... even a set 72 years would be in many ways counterproductive.

I'm glad that the misuse of your wife's article was caught and that she is now getting both the credit and payment for her work. That is what copyright law was designed for. It's unfortunate that it can also potentially clamp down on actual creative endeavors such as Adriel and misskokamon described.

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs October 30, 2011 - 7:35pm

Also, if you are fictionalizing a song (which is what it sounds like you are doing; turning a song into a story counts as creating a derivative work, which is protected by copyright law) then you need to get permission.

Actually, I'm not sure if that's true. But perhaps a person would know far sure would be Peter Wild, who you can find on facebook, lives in the UK (Manchester)--where the copyrights laws may be different--and edited a bunch of anthologies that consisted of songs inspired by a particular musicians songs (although I'm not sure how similar their content was in comparision the songs). I seem to remember hearing that Mark E. Smith was annoyed by the anthology of stories based on his songs but he didn't take legal action (he just seems to be a grumpy guy overall).

And then there's Douglas F. Warwick and Kyle S. Johnson (also on facebook) who live and work in South Korea but are U.S. citizens. They were going to publish a similar anthology with stories inspired by Nick Cave songs through a different British publisher, but it fell through (an example of an anthology that falls apart like some of us were talking about on another thread).

So maybe if you contact one of them with questions, they will be able to help? Although perhaps copyright laws are different in the UK than the US. But it looks like Peter Wild's anthologies were published in the US by other publishers while I seem to remember buying one book from the would-be publisher of the Nick Cave anthology from Amazon without paying for the cost of airmail (but I could be wrong).

XyZy's picture
XyZy from New York City is reading Seveneves and Animal Money October 30, 2011 - 8:33pm

Well, there is a difference between inspired by a song, and fictionalizing a song. So as you said, without seeing the work, it's hard to make that distinction. The format of the Wild anthologies seems to be (granted gathered only from reading about them, have not read one myself) that he gives writers the titles of a song as an inspirational starting point and they write the stories from there. Including the titles to instrumental tracks, which seems to be well within the bounds of 'inspired by' as opposed to 'adapted from.'  No one says you can't hear A Boy Named Sue, and then write a story about the life lessons learned from an absentee father, but to write the story that's already laid out so well in that song, you should get permission.

And also, getting those permissions where they are necessary, which usually involves paying for them, is the responsibility of the publisher. So another possible reason for an anthology to collapse is under the weight of reprint licenses, securing adaptation and anthology rights. Or litigation arising from not securing those licenses.

There isn't a huge difference in copyright law between the UK and the US, since the UK pretty much invented copyright law in 17-something. The only real differences have been how one goes about getting a piece 'copyrighted' and how long the protections last. And those differences have been shrinking since the adoption of the Berne Convetion as well.

But as you say, Peter Wild may know for sure, as he done it a few times.

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs October 30, 2011 - 9:08pm

I'm pretty sure the authors were asked to write stories that were inspired by the actual songs rather than just their titles (I read a few stories from The Fall anthology, although I don't recall how similar they were to the songs that they were based on). I don't think it would serve a purpose to write a story for one if his anthologies if it was only inspired by the song titles rather than the actual songs. I was asked to write a story for the Nick Cave anthology based on a song rather than its title. And there wasn't any specific instructions to make sure it wasn't too similar to the content of the song. I don't know why the anthology fell through, but I assume it was for other reasons besides not being able to afford licensing fees.

postpomo's picture
postpomo from Canada is reading words words words October 31, 2011 - 4:35am

@XyZy - thanks for that post.

spence's picture
spence from planet is reading Books October 31, 2011 - 5:49am

Also, you can't copyright a title. You could write something and call it The Great Gatsby as long as it doesn't resemble the original story in any way. Case in point: The Red Hot Chili Peppers pretty much lost their lawsuit against Showtime and Californication because they never trademarked the word Californication. I suppose trademarking is a different story though.

XyZy's picture
XyZy from New York City is reading Seveneves and Animal Money October 31, 2011 - 11:54am

@Bradley: Well, yes. I'm sure you're right. There are many reasons besides licensing fees that an anthology project may fall through. And it does make more sense for an anthology like Peter Wild's to pursue pieces inspired by the works themselves, and not just the titles.

Perhaps I was being unclear, or got sidetracked in my response. Let me back up. What I believe you were unsure of initially was my statement that if Adriel is fictionalizing Ziggy Stardust, then that counts as a derivative work and he needs permission to publish the work. So, let me support that statement:

Exclusive rights of the copyright owner (section 106 , title 17, U.S. Code):

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If Adriel creates a derivative work of someone else's work, he is infringing upon the exclusive rights upheld by the copyright act. I do not mean to imply that you are unaware of this fact, and I list all of section 106 primarily in an effort to be exacting and accurate, but also as a benefit to those among us who may not have yet taken the time to read it. I believe that if you wish to make a living off of intellectual property, you should probably understand how that works, and I also know that the copyright act is long and sections of it are boring and confusing. I don't feel the need to ever read sections 901 - 914 again, as I'm not planning on reverse engineering any semiconductor chips anytime soon... but section 106 is important. Everything else in the law is in reference to this, so everyone should at least know this part. Sections 101 and 102 are pretty important too. And discussions like this usually only arise because someone hasn't.

I believe the part that of my statement that has caused the confusion is either the "fictionalization," or the "of a song" part. So let me be precise, I did not choose the word "fictionalization" because it may impress someone in its six-syllable-grandioseness or as a euphemism of falsify. I chose that word because it is explicitly different than "inspired by". I'll reiterate; there is a difference between an inspiration and an adaptation. Where that difference lies, fortunately and unfortunately, is often defined in the same way that Justice Potter Stewart defined pornography, "...I know it when I see it..."

However, "fictionalization" is directly referenced in the copyright law as part of the definition of a derivative work and directly applicable to the matter at hand:

From section 101 of title 17: Definitions

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Now, whether or not what Adriel has written counts as a fictionalization of Ziggy Stardust is a hard call to make, especially as neither of us have read the work, and that is the heart of the initial question. And really it doesn't matter if we think it counts or not, though I welcome the possibility of lively debate, but it only actually matters if anyone bothers to sue over the piece, and even then, only to the judge presiding over the case, as he's the one making that distinction; he's the one to convince. Now Adriel can show us the piece and ask us if we think it counts, and as the group of weathered literati we are here at litreactor, our collective opinion is probably worth considering, but the bottom line is if his piece can be considered a fictionalization of a preexisting work by an adjudicator sanctioned to make that distinction, then it is a derivative work, and the creation of derivative works is an exclusive right guaranteed by section 106.

Perhaps it is possible that stories based on songs somehow fall into some loophole that excludes the need of permission, and you'll notice that I have been purposefully avoiding the use of the word 'song' in most of this post. The reason for that is kind of interesting; the copyright law also does not use the word 'song', at least not within the sections dealing with scope or definitions, sections 101 - 122. But fortunately for all of us, this does not create a loophole that our example here can slip through.

Although the copyright act has no definition for 'song', it has numerous definitions for every way of conveying a song, including ways not yet created. The actual phrasing is (from section 101: Definitions) 

'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies' includes the material object, other than a phonorecord, in which the work is first fixed.

It also goes on to define phonorecords,

'Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'phonorecords' includes the material object in which the sounds are first fixed.

There are also definitions for 'audiovisual work' and 'motion picture' and 'fixed'. All of which can be found in section 101. And please peruse and tell me if you come up with a different interpretation, but as far as I can tell, once a song is put into a tangible form, is "fixed", that object becomes a "copy", or a "phonorecord" depending on the method used to fix the work, and is thus afforded all the protections any other work of intellectual property is granted, including derivative works. The song in question has been fixed into tangible forms many times over the past forty years, so there is no question as to whether or not it has that protection under the law.

There is part of me that still tries to get around that seeming hole in copyright law and find a way to reproduce or protect a work without first having it in a fixed form, but then I realize that copyright law doesn't protect works that aren't in a fixed form by design. If it's not in a fixed form, then it's just an idea... and you can't copyright ideas, and you really don't want people to be able to...

So, to summarize, you do not need permission to publish a piece of work inspired by anything, be it a title, a lyric, a song, a whole album, a book, a poem, or anything else. You do need permission to publish an adaptation of a work. There is a difference.

If Adriel wants to write a story about a drug-addled rock star with a message of peace and love for a dying planet, that's one thing. If he wants to write the story of The Rise and Fall of Ziggy Stardust and the Spiders from Mars, that is something else. And where is that line that one becomes the other? I don't know. But if you have to ask the question, then you are probably already toeing it. And if you say something like:

Now if I were to aknowledge at the beginning that this story is based off said song, is that allowable? Do I need to find a way to get permission from the artist, or label or whatever? Or change character names but keep the plot the same?

then chances are you've already crossed that line. At least as far as the law is concerned.

And although the law is technically specific about the creation of derivative works, if you don't publish, it doesn't matter. You can write whatever inspires you. No one is going to sue you for a story that no one reads. If you want to publish these kinds of stories, then you need to make these considerations.

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs October 31, 2011 - 12:07pm

Regardless of whether or not fictionalizing a story is copyright infringement, if the story in question is published by a small press or a free online journal (rather than a place that is of a higher profile), the musician who wrote the song or whoever representives them will almost definitely never find out about it, so it's highly unlikely that the author will get into legal trouble.