A question re copyright infringement or not

[Deleted]

Hi,

I am working on something where the lead guy likes to call the female Tinkerbell. It is a theme through the story and does make mention of her flying him away to Neverland. Now is this a copyright infringement. I have been told that GOSH, Great Ormand Street Hospital has the copyright of Peter Pan and they hold onto it with a tight fist so I wouldn't want to be or the wrong side of their fist.

Also..... I have another story where the guy is a singer and I would like to use the lirics from a song that has been out there. How does that work. Do you just have to reference where you got the lirics from, who wrote it?

[Ximena]

I actually just read post about this the other day - let me find it for you -

janefriedman.com/2012/06/15/trademark-is-not-a-verb-guidelines-from-a-trademark-lawyer/

From my understanding, it would be OK to use "Tinkerbell," but I'd be careful with using lyrics.

[Deleted]

Oh thank you Ximena, I have forwarded the link to work and will read it tomorrow with my thinking head on.

[devogirl]

If you're just going to post the story on the internet, chances are you'll be fine. The trouble really only comes if you plan to publish and sell the book. Using the name Tinkerbell is fine, I think that name could be construed as having moved into common usage. But song lyrics are a BIG problem. Like poetry, you can only quote a tiny bit, or sometimes nothing at all, because the whole work is so short, not much can be considered fair use (unlike a quote from a novel, for instance). The rights to most pop songs are held by giant companies like ASCAP which charge huge fees and are extremely litigious. Look in any book or novel you own that quotes song lyrics--on the copyright page at the front there will be an acknowledgement, meaning they paid for the right to quote the song.

If you're going to post it online, just include a note somewhere acknowledging the lyricist/composer. If you're planning to publish (with Ruth maybe?) you can probably get away with a line or two, but anything longer I would just take out. It's not worth the long and expensive process of trying to secure the rights.

[Deleted]

Thank you for your reply devogirl. I was wanting to go down the publishing route. I was also trying to avoid having to try and write song lyrics but i think it would probably be better to try that than risk the wrath if any c & d orders. I have just read Where She Went (a really good bk about a torchured soul) and the author opted to write their own songs but made references to other bands so you got the feel for the genre they was trying for.

Thanks all for your replies.

[devogirl]

What you described is the only way to go, IMO. A publisher does not want to have to deal with a cease and desist order, because then they have to pull copies. Even in self-publishing you have to swear that you are not infringing copyright, and you could be sued if you knowingly include song lyrics.

This whole copyright thing makes me really angry. Yes, it protects artists and allows them to make money off their art. But the way it's implemented today is all about making money for corporations, not artists. One really good example is the animated film Sita Sings the Blues. In order to use songs from the 1920s that are supposedly in the public domain, the creator would have had to pay upwards of $200,000 to various rights holders. Even after paying $50,000 to rights holders and issuing the film for free under a Creative Commons license, she could still be sued. It's outrageous.
www.smilepolitely.com/arts/copyrighting_away_culture_an_interview_with_nina_paley/
The movie is amazing though, I recommend it highly!

[Deleted]

Here's a fun read and a perfect example of big companies acting out when using their property. If you haven't heard of the guy, David Thorne, he's a genius when it comes to trolling and making people angry. He's also very smart and funny.

www.27bslash6.com/covers.html

[ruthmadison]

Yeah, the contract for my company and for most of them says that it is up to the author to obtain the necessary rights for any quotes or lyrics, etc.

I think you have to find the person in the company holding the copyright who deals with it and ask what you can use or if you have to pay anything to use it.

[Ximena]

Yeah - if you really, really feel you need to use quotes - I'd try to contact the company! You might be surprised. My sister is getting her MFA in playwriting and for her thesis play she really wanted to use quotes from this one book, so she contacted the editor (it was a nonfictino book of historical letters) and they not only gave her permission to use whatever she wanted, they were thrilled by it. Obviously, that might not be the case every where, but it doesn't hurt to ask if you really feel you need it.

Otherwise, I think it's best to try to take the advice of the author of the post I published - don't use brands if you don't really need them.

[devogirl]

I would not recommend contacting the company, especially for song lyrics. If you send a request and get no answer, legally that's the same as a "NO" so you can't use them at all. On the other hand, you can make an argument that one or two lines, or part of a line, constitute fair use. There is no law defining public domain, it only exists when people exert it. Oh and song titles of course are always fair use, so list as many as you want.

In the case that Ximena brings up, that's a nonfiction academic book. You can almost always get permission for things like that. Pictures or photos are also pretty easy to get, usually. Anything to do with pop music, though, is by far the hardest--there are multiple rights holders and all are greedy and litigious. The only exception I'd say is singer-songwriters who are not signed to a major label. If they still control all the rights themselves and have a close relationship with their fans, you could probably get the rights directly from them. But a band on a major label, I would avoid it.

[Ximena]

It was not an academic book - but yeah, that's definitely different than song lyrics. I think it's always better to play it safe than sorry.