From what I read, the OP is absolutely certain this is out of copyright, or she wouldn’t be asking how to properly attribute an uncopyrighted work.
And, anyways, how does one go about officially verifying that something is out of copyright? You seem to be implying that there is some sort of paperwork one can receive or some sort of agency one can hire. I was under the impression that you could only do exactly what she did–do a reasonable search on your own to discover if something is under copyright.
IMHO, it should be a heck of a lot easier. Anything verifiably written prior to a certain date should be able to be assumed out of copytright. Anything not qualifying should have to be explicit after that much time. There’d be a list of things that are still under copyright after that year. (I’d get into the idea that there shouldn’t be any reason why they’d still be under copyright, but that’s another subject. Let’s just say screw Disney.)
One judges one’s risk and exposure, and if it is deemed significant, one consults a lawyer or company that specializing in clearing copyrights.
I think someone else left that impression.
Maybe in this case, it turns out to be a well known public domain piece in frequent use the risk is low. But the process is still the same.
Easy for you to say if it is not your money at risk. That helps, but “verifiably” is open to interpretation. You gonna invest 1.5 million or even up 10 to 100 million in making a film or promoting a book or whatever, only to have someone claim some music you used is under copyright and make a case?
Right, in the end, the court will decide. You taking that risk? You exposing your personal assets?
There is no “list” of things under copyright in any year, including this one.
And of course you can prove that something is not copyrighted. To cite one obvious example, if something was written before the advent of copyright laws, then it was not copyrighted.
lissener- I am not a she. And you have not offered any evidence that I am wrong.
In fact, I said regarding the current song, if the OP is willing to take the risk, that is the OP’s choice.
In fact, that is really the only option.
How an author or creator manages the risk is what the question is. And why the publisher pushes the risk onto the author is worth looking at closer. What other risks is the publisher not taking that they should?
As for not knowing what I am talking about, as a film producer who deals with these issues, as I said, well, I think that perhaps you didn’t understand what I wrote before.
Or, alternatively, you can tell us what your experience with these types of matters are.
We know what the song is. A moment’s searching shows that the song and its lyrics were in print before 1923. There is nothing more that needs to be said on the subject.
What about the more general case of song lyrics? You would be hard-pressed to come up with much in the way of case law that says specifically how much of a song under copyright can be quoted in a novel. The presumption in the industry, nevertheless, is that no lyrics can be quoted, not even short fragments.
That and actual libel are about the only two things that an editor would make a fuss about. Everything else is the author’s responsibility. See all the cases of phony memoirs being passed through without the slightest form of fact-checking.
Even so, you need to presume that the editor notices the lyrics, knows the industry standards, and makes a fuss about it. All those are less likely today than they used to be. Editors do much less in the way of actual editing. Many small presses have self-taught people with no other experience. Book mills like PublishAmerica will put into print anything that you send them, even pure gibberish.
For most of the last century, agents were expected to spot this stuff before the manuscript was sent on to a lawyer. They also read the contracts and negotiated changes. Lawyers almost never got into it. Again, that’s changing as proportionally fewer authors and books get published by the large mainstream presses. I’ve had authors tell me - proudly - that they sign their contracts without reading them because they’re all unenforceable.
Again, none of that applies to this case. The OP knows the song and its history and its status. That was obvious from the OP. I don’t understand why anyone is questioning that. It’s a provably old song. It is in the public domain. No copyright search was ever needed. That was an irrelevancy that confused the thread. The only question asked was a matter of style, not law.
“A moment’s search” is the standard courts are using now? Cite?
Right, I said one needs to assess the risk. A lawyer specialized in this area would certainly be in a position to do that, to know the case caw, and to propses a “fair use” defense if appropriate.
Depending on what is at stake, relying on “fair use” on your own might not be the best idea.
That is not true at all. “The industry” whatever that means, is well aware of the Fair Use" doctrine. No one disputes it as a doctrine. Perhaps some people will object to its use in a particular case, but as a blanket matter, yo are simply wrong, almost by definition.
No one here is talking about the editor, they are talking about the publisher. The publisher takes legal risks and responsibilities (shared in an agreed upon way with the author) in order to duplicate, market, and disseminate a work. An eidtor is hired to assist, but doesn’t take any legal risks.
Not true, everything you mention is negotiable by contract, if by no other reason, than that copyright can be assigned in whole or in part. Each case is different.
Substitute “publisher” for “editor” and you are basically describing part of the job of the publisher. The publisher ignores it at his or her own peril.
Unless of course, they have assigned the peril to the author, and the author agreed.
Which is why I said way up top, the author should review the contracts with the publisher in light of this behavior. Maybe they remain satisfactory, maybe not. I am not party to any of it, I can’t say. But something seems amiss to the author now, or else we wouldn’t have the question asked as it was.
The editor is not the issue here.
And so, having their contracts reviewed by someone who represents the author is a good idea for the author.
And they probably push all the legal risk onto the author. Probably because they basically print only, and do little if any marketing or disseminating, leaving that to the author.
Maybe that is OK for this author or that one, but at least the authors should make the decision explicitly rather than be surprised by a lawsuit. Assess the legal risks and act according to your comfort level, that is my advice to this author and all authors in a similar boat.
True, and now that authors are acting as their own agents, in effect, they need to put on that hat, raise the issues (as our author here has done) and refer to teh lawyer their agent would have had on call. Or take the risk.
That is hubris.
It also means their works are essentially unsalable into the film or related markets. Maybe they don’t care, but maybe a once over by an attorney would mean the chance for a larger payday instead of a garage full of boxes of books.
Only thing to do is assess the risk and act according to your comfort level.
Not obvious to me form the OP. I don’t knwo the song, nor am I familiar with ANY of the works cited later in the thread where the song was said to be used similarly. Why would reading the OP be sufficient in a Court?
> I don’t understand why anyone is questioning that.
No one is really, we are discussing the general case now.
> It’s a provably old song.
Probably. But it wasn’t proved in the OP, nor anywhere else in this thread. For example, if the lyrics were used in Ulysses or other old works, perhaps the song was still under copyright and licensed at that time. It would not be germane to the argument at all to cite them as proof that the song is out of copyright now.
What probably would be sufficient, and not that difficult to do in the scheme of things, is to find the original sheet music in the Library of Congress, and offer it is proof of the exact lyrics, and the date published.
Maybe if this song is used a lot, there is some existing case law. Citing that would suffice too IMHO.
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It is in the public domain. No copyright search was ever needed.
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That is also not true. The song itself may in fact be in the PD, or it may not be. But, as I mentioned in my first post, that is not evidence that the lyrics as quoted are.
The particular instance of a PD work acquires its own copyright, and to the extent it varies from the original, that variation is subject to copyright anew.
A good example is the song “The Cat Came Back” and the well know animation by the same name. The song was ancient, in the PD by every argument listed here. The film short dates to (OTTOMH) the late 1980s, and some of the lyrics were rewritten for the film.
So, if I quote the lyrics and say it is from that song, it is important to know if it is from the original song, or from the film, or perhaps from some other source.
Same issue here, based on the OP. I accept that this song in the OP is from teh original, but I am not taking the risk.
I also wonder why the publisher is not taking the risk, and if they are not, fine, but what services are they providing exactly when they are abandoning such a traditional role of publishers? What else are they pushing on the author in the fine print of any contract? Is the author aware of that, and willing to accept the risks?
It is not irrelevant. That is just your opinion.
The author posited that the work was in PD and wanted to know how to cite it, but offered no evidence that the work is in PD. IANAL, but I would think an improper cite could be prima facie evidence of a lack of a sufficient search, and maybe evidence of bad faith.
not_alice, I’ve worked for publishers and I’m a published writer. There’s nothing at all unusual about a publisher explicitly disclaiming legal risks. I’d go as far as to say they would be foolish not to.
Why would you say that? Of all the publishers with books on Amazon, or magazines on some newsstand or journals in some library, you can make the blanket statement that “publishers would be foolish to [push all risks onto the authors]”?
What does such a publisher actually do?
ETA - and as I said, surely all terms are negotiable, but then, since it was an author, that made the OP, do you disagree with my statement that any author should use the appropriate means to evaluate the risks and rewards, including reviewing any terms imposed by the publisher to one’s legal satisfaction?
Heh, thanks lissener and Exapno Mapcase. And even not_alice, because I know you’re trying to help, even if you are (hopefully unintentionally) implying that I’m staggeringly ignorant and negligent in the process.
Maybe what’s causing the disconnect here is that not_alice is addressing his area of expertise, film production, where copyright issues more likely relate to specific performances of songs (such as a character listening to a recording). Finding recorded music that’s free and clear to use is a much different task than printing lyrics. In fact, IIRC, recordings aren’t in the public domain. That’s why royalty free music is such a big industry, nu?
But that’s not the case here. In the incredibly unlikely event that this book were to be optioned for a film, which trust me, is SO not gonna happen, we could just get someone to record the song afresh; it just has to sound like a recording from the 1890s, it doesn’t have to be original.
not_alice, the lyrics I’m using were printed in 1884, and I’ve posted proof thereof (obviously if necessary I would get the original source, since a Google Books cite wouldn’t be enough), as printed in Peterson’s Magazine from c. 1889 I think it was. I don’t understand what you’re balking at. The song was written/published before 1922. It is not under copyright. This isn’t brain surgery.
Sensitive much? I already said that is not the case long ago.
Maybe someone will search this thread when concerned about a similar passage and benefit from it in the future. Maybe someone is lurking and learning now. Don’t think a thread is all about you so much
No, that is just one aspect of clearing a film. And I don’t think in the eyes of the law (and copyright holder) there is any difference in the method of performance or exhibition of the work - printed, performed, or whatever - the issue is, is it a derivative work, not what is the nature of the derivative work.
No, you can’t “just get someone to record it afresh”, just because the song is old. The arrangements you use may still be under copyright independent of the lyrics or the song itself, in the sense that it would jut be newer. some have said your song was used in other TV or film already- I couldn’t simply copy the arrangements without taking a risk - they may have been created much more recently, and be under copyright.
And even with lyrics, as I mentioned with “The Cat Came Back”, some lyrics, maybe even the best known ones, may be under copyright while the original ones are not.
Look, you may be satisfied with the risks you are taking, that’s all you can do. But generally, the risks are more complex than people here are making them out, and most here are simply offering rationalizations, not support that would stand up in court, for their positions. I am sure any attorney who specializes in these matters will tell you exactly that.
I am not balking, and I acknowledged that what you present may be sufficient in your case.
But your case may not be typical, as it appears to be a passage used often in other works. Others may choose passages that are no so clear cut, such as “The Cat Came Back”, or even “Happy Birthday”.
Now why are you balking at what I write, when you obviously haven’t read it closely, or if you have, haven’t understood it?
Yeah, I’m definitely way too sensitive. Why on earth would I assume you were implying things about my reading ability or intelligence?
I simply don’t give a rat’s patootie about other cases. I am interested in my case, because this thread is about my specific question, and my specific use of these specific lyrics. You don’t appear to realize that. Jesus. We get that there are other not-so-clear cases. But this thread isn’t about a general use of a not-necessarily-in-PD song. It’s specifically about a song that is in the public domain, not a debate about whether a particular song is in the public domain or not.
As far as the arrangement goes… Where exactly did I say I’d be using someone else’s arrangement of the song? Again you assume I don’t know WTF I’m talking about. I would either create or commission my own arrangement of the song, for pete’s sake–I’m a musician and know many others. Not that it matters, because it’s not gonna happen. Seriously.
I’m making a statement based on my experience as a professional in the industry (kind of like you are). Of course, you’re free to be as skeptical as you like (kind of like everyone else is).
I’m quite comfortable making the statement that publisher would be foolish to assume more legal risk than necessary. A publisher’s ability to know for certain that a writer isn’t slandering, plagiarizing, or (in the case of non-fiction) just making shit up is always going to be limited.
They – wait for it – publish. The main thing publishers do is produce and disseminate the author’s work. (There are vanity presses that call themselves don’t do any marketing or distribution of the material they produce yet call themselves publishers, but they are abusing the word.)
If the writer is looking for legal representation, insurance, or career management, there are others who provide such services.
Of course not. A writer is free to (a) accept the terms, (b) renegotiate, (c) seek another publisher, (d) self-publish, or (e) forgo publication altogether. But (b) only works if the publisher is willing to renegotiate, (c) means the writer risks remaining unpublished for the uncertain chance of finding better terms elsewhere, (d) is not something every writer is interested in doing, and (e) is not an attractive option to most.
Wasn’t me that referred to people on this thread as “retards”. Wasn’t you either. Maybe you should ask that person.
So what? You are not the only reader here, now or in the future.
And my advice does apply to your case. You can choose to ignore it, but that option is built into my discussion too.
Then you will have to sort through the answers you get and discern wahtyou need from them I guess.
Kinda like every other thread on this boad. Ever.
But then you are looking to argue, instead of reading closely what I actually wrote to see if it applies to your case. It may not confirm your pre-existing bias, sure, but whose problem would that be? If what I wrote abour your case shakes your pre-existing bias and makes you nervous, than don’t attack me, mys advice is still uncontroverted on here.
But what you don’t seem to get is that the edge cases are more interesting. “Me me me” is all you think this thread can be about.
No where, but you (or someone) said that perhaps my experience in film did not translate to printed work and lyrics.
Why not address the issue I raised with “The Cat Came Back” which is akin to your case, at least how I asked about it in my first post? Wikipedia has some info on that song and the film if you don’t know it.
I assume what you have told us, nothing more. You have not said you had a lawyer vet your contract with the publisher (if there even is one), you came here saying the publisher doesn’t know how to do a routine service, and I asked if the two are evidence of something more concerning.
How would I know you are a musician? You knock me for “assuming”, than you expect me to pull that out of thin air and to have included it in my discussion earlier?
choie, let me say this to you and also to all those mythical future readers of this thread. You have done everything right. Ignore all comments to the contrary.
I’d also like to say that in 35 years in the print world, the question of whether something would clear a movie’s lawyers has never come up. I don’t mean for me personally. I mean I have never heard of anyone asking the question or raising the issue before. Nobody cares. Oh, I’m sure that somebody somewhere at sometime must care. But in all the discussions of song lyric quoting I’ve ever heard, and they are many, nobody has ever mentioned what would happen if a movie would made. Print people don’t think that way. Yes, I am comfortable with that as a blanket statement.
No one here has said otherwise. Why are you inventing strawmen?
I’d also like to say that in 35 years in the print world, the question of whether something would clear a movie’s lawyers has never come up. I don’t mean for me personally. I mean I have never heard of anyone asking the question or raising the issue before. Nobody cares. Oh, I’m sure that somebody somewhere at sometime must care. But in all the discussions of song lyric quoting I’ve ever heard, and they are many, nobody has ever mentioned what would happen if a movie would made. Print people don’t think that way. Yes, I am comfortable with that as a blanket statement.
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That was but one example. The real issue, is will the clearance of the book itself stand muster, or place the economic structure at risk? That was inherent in the OP, s/he knew s/he had to clear the lyrics somehow, but why?
BTW, why not describe your “35 years in publishing”? What was your role, and how was it relevant to the discussion? Are you familiar with the real issues involved, the legalities and the reasons for them? How so?
Would you recommend a publisher publish a book without assessing the copyright risk as I suggested? How they decide to act on what they find is their business, but without even assessing it? How about the author
Because unless you say yes to those 2 questions, you are 100% in agreement with me.
I have been a writer, columnist, critic, academic researcher, editor, and publisher. I’ve done dozens of articles about the business of writing. I follow case law and participate in discussions about copyright matters.
Please give us your qualifications for discussing print publishing.
Then by this point in the thread, you will be about ready to explain where I am wrong? Whjere case law contradicts what I have said?
Just for the record, since you claim familiarity with “the business of writing”, where do you stand on writers treating their writing as a business instead of a hobby? Me, I recommend that to writers, and others in the production chain of media, all the time. Create a proper company, proper business plan, see to the financing, consider that maybe it isn’t a one-person business where the author has all the skills to handle publishing sales, marketing, protection of IP, and so on. How about you? What is the gist of your advice in the articles you write?
