1. DrWhozit
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    DrWhozit Banned

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    Style Getting Permission

    Discussion in 'General Writing' started by DrWhozit, Nov 22, 2013.

    I have a book written and I include at the beginning of each chapter the lyrics of a meaningful, somewhat or overtly relevant song. Prior to actually publishing, I plan to solicit "courtesy permission" from the one (usually a recording company) who owns the copyright. My experiences from contacting anyone of any greatness is the responses are fewer than the frogs and crickets in the woods. I have another legal method.

    This time, if I send an email or letter, I'll do something the same as what happened to me once when I sued a company for payment on an expensive sign I made for them. The company I did the work for sent me a check for a fraction of the amount do and put the words on the back of the check and in their accompanying letter that if I cash the check, I am releasing them from any further obligation to pay. That held up in court. I lost my case.

    Another aspect of law is "The Tacit Agreement." If I say I'll mow your lawn for $20 and you say nothing, I may mow your lawn. As long as you did nothing to stop me, you owe me the money because you made a tacit agreement with me. It is possible to apply this to getting courtesy permission.

    If I send out an email that gives a reasonable time frame to respond with a decline or it is tacitly granted, in such words that are not threatening, instead relieving the owner of the need to respond at all, that should be enough. If they respond to decline, I don't use it. If they respond to agree, I do. If they do nothing, I use it.

    Logically, there are so many lyric sites out there that are making money off Fred Zeppelin et al, that it's nearly a given that if I'm not pasting a bootleg CD onto the page, I should be okay. Ethics says I should ask. If they decline I can always write a Weird Al Yankovich type of parody to replace it with. For instance:



    Grandma hit some people who were walkin',
    Those poor people never had a chance.
    Last time all they did was take her license,
    This time that ol' judge will make her dance.

    All she did was go out on a beer run.
    Gramps and me just waiting in suspense.
    Guess we should have went out to the state fair,
    And hung out in one of those ol' beer tents.



    Well... what's the worst that can happen?
     
  2. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If they fail to respond, you use it anyway, and they bring an action, you're probably going to lose in court unless you can demonstrate some kind of Fair Use (they may well argue that you knew it wasn't Fair Use, which is why you asked permission). I wouldn't rely on failure to respond as implied permission.

    If the rights holders have web pages, they may have specific instructions for requesting permission, and following those might speed up the process. It can take some time to secure permission.
     
  3. DrWhozit
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    DrWhozit Banned

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    Of course this is assuming I followed their instructions, should those be conspicuously available. It still baffles me how the lyric sites get away with it.

    As for "conspicuously available," that's a major stumbling block for them if they conceal it in metaphorical fine print or under a metaphorical rock.


    Tacit
    Implied, inferred, understood without being expressly stated.
    Tacit
    refers to something done or made in silence, as in a tacit agreement. A tacit understanding is manifested by the fact that no contradiction or objection is made and is thus inferred from the situation and the circumstances.
    West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


    Not to be confused with tacit assumption which is a term of logic.

    The above would be considered "fair use." If (and I've considered this) I mention a few relevant lines, giving proper credit to the authors or even including the copyright info, as above, that could be considered fair use. If not, many in even this forum would be at risk for infringement since signatures are a form of publication.

    In my case of using the whole body of lyrics, my defense would attempt to have it dismissed as frivolous because the lyrics were obtained second hand from a site using them without any consideration of permission in long standing. Perhaps you remember how long it took for the record companies to win against Napster. Those were the entire recorded work of the artists. These are mere lyrics. Another defense supporting such an action being frivolous is that every night in some Holliday Inn or Ramada Inn or Marriott there's a band playing their own renditions of those lyrics put to their own style perhaps. Danley and the Dribblers at Jay Jay's Lounge would be tough to bring an action against, where Rain most certainly needed many permissions. Radio stations must pay royalties. A stage play that uses say Foo Fighters songs recorded by Foo Fighters must pay royalties.

    As I mentioned, the question is ethics. The lyrics should rate permission free gratis. At worst the rights owner should pay me for advertising space. I'd think any royalties would be miniscule, but it wouldn't be something to trot right up and offer.
     
  4. DrWhozit
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    DrWhozit Banned

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    BTW... Cat Magnet... cute.
     
  5. Mckk
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    Mckk Moderator Staff Supporter Contributor

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    What's' the worst that can happen? You get sued in court and end up with a heavy fine and your reputation is in tatters and no publisher will probably ever wanna touch you. You may have lost your case (quite unfairly) re the expensive sign, but you're forgetting these musicians you're trying to plagiarise are big names with big producers and therefore also big lawyers backing them up - they're far less likely to lose than you are. I doubt the tacit agreement would actually hold up in any real court - most copyrighted stuff has it clearly stated that you're not to use the content without written permission. Sounds like the myth of the self-postal service that supposedly proves copyright ownership.

    Besides, in the lawn case, you offered a service. In the actual case of you using someone else's work, you're not offering anything - you're just being a leech.

    I'd say, if the lyrics you quote are from big names, you can bet your bottom dollar the rightful owners of that work will chase you down and they'll win in court, if nothing else other than the fact that they can afford way better lawyers than you can ever dream of hiring. I wouldn't play this game if I were you.

    As for your argument that lyrics are posted on websites and songs used by artists performing gigs etc - you're forgetting one very important thing. They're not making any profit. Therein lies the difference. Once profit is at play, you're talking commercial use - that's not the same thing as those lyrics websites and a free gig down the pub.

    In any case, if you have to go to all this length just to defend your argument and find loopholes that will get you off scot free, why are you even asking? It's unethical and you shouldn't do it. You're playing with fire and hoping no one notices and hoping a flawed justice system will support the criminal. You're stealing and trying to justify it. Looking at it any other way is just denial - or delusion.
     
    Last edited: Nov 22, 2013
  6. DrWhozit
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    DrWhozit Banned

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    Obviously, I'm seeing what sort of opposition thoughts are out there. Leech isn't. Free plugs for someone who doesn't need it is.

    Still, this is not a must have part of the book, just an unsung sing-along. The easiest route is just to write some more songs to replace them, which are already plentiful in the written body already. I suppose something like:

    I was singing to myself Led Zeppelin's Kasimir. Then this little parody started dribbling off my lips accompanied by a giggle... {...the parody...}

    I remember John Fogerty's battle for the rights to the music, not lyrics, of "Run Through The Jungle."

    The books are still what they are without quoting big name material. All it really loses is a bit of nostalgia that some readers might enjoy.

    Gosh. Now you have me thinking about the second book in the series where the time traveler saves the life of John Lennon and effectively writes 9-11 out of history, not without cost to his own life. Now I'm depressed and wondering if I should just start making bird houses out of recycled wood and give up writing...
     
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  7. Mckk
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    Mckk Moderator Staff Supporter Contributor

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    It might not be as hard as you think to secure permission - I mean, plenty of writers include quote from poems at the beginning of their books. So including quotes to enhance the emotion/theme of the book is common - just don't try to get around it. Secure proper permission.

    And no, don't give up writing! You'll be fine, listen to some happy music like, like... Hakuna matata!
     
  8. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I don't think you have to get into ideas of stealing or being a criminal, but it is a matter of allocating risk. The implied permission because they don't respond is going to be a loser in court, in my opinion. So what are the odds that they'll find out? What are the odds that they'll care? If you think you have a Fair Use argument, taking a copyright case through trial will cost you hundreds of thousands of dollars, which you won't get back even if you win. Those are the types of things I'd think about.
     
  9. DrWhozit
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    DrWhozit Banned

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    That bored lion cub scares me!:eek: So do clownso_O Aaaauugh!!! (just kidding and I'm not really depressed, although that issue about my dog in the not happy thread still bugs both me and my other half... )

    THIS is what scares me: Writing a book that is a changed time line including real life characters. This book is effectively a seeming derivative work of HG Wells effectively played by Cheech and Chong. I've let a few people read some of the chapters and received ROFLMFAO responses.

    I could see how it goes as is and if all else fails plead insanity.


    If I posted the copyright page and author's forward here would that violate forum rules? If not, you might gather a feel for what this is like. I give credit where credit is due. That does not constitute plagiarism.
     
  10. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I'm not really sure what you're asking here. You first seemed to be asking about using song lyrics, which you cannot do without securing permission to use them. There are standard processes for securing these sorts of permissions, although I don't know exactly what they are. But they usually involve paying some sort of fee. It's not generally worth doing unless the work using the requested lyrics is expected to be a commercial success -- that is, a movie, or a book that is published traditionally. Traditional publishers know the established process for securing these permissions. If you're just planning on self-publishing, I'm not sure that it's worth the money for the license or the effort it will take to get that permission.

    Yes, you could try to do it without getting the permission, and given the multitude of self-published stories out there, and the small number of people who actually read them, there's a chance that no one will notice, or if they do, won't bother seeking damages for copyright infringement. BUT, if they do notice, they certainly could sue you for it, and the damages aren't necessarily going to be tied to the money you made (if any) from selling the story. Even if the chances are very small, there's a pretty big downside, and you have to decide whether it's worth the risk. What are you really gaining from using this copyright? Personally, I wouldn't do it.

    Later in this thread, though, you seem to indicate a different worry -- that of use of likeness, although I'm finding it hard to really picture what a derivative HG Wells work played by Cheech and Chong really is, and who you're worried about infringing here. Characters that are like Cheech and Chong are fine. But if you're actually using Cheech Marin and Tommy Chong as characters in your story, there might or might not be a problem.
     
  11. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    The music industry tends to be quite litigious about use of lyrics without permission. Even if you were to win (unlikely) when hit with a lawsuit, the legal costs you would incur would likely bankrupt you.
     
  12. DrWhozit
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    DrWhozit Banned

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    Now I AM depressed. (Once again, truly being facetious, yet that's enough to make a troop of kangaroos jump into a pool of crocodiles...) That alone is a good reason to stop working at becoming a published author. It seems the cards are stacked against me regardless of which way I play mine.

    I mean... I mean... it's funny how serious are the obstacles to delivering formidable sci-fi comedy drama upon which the fate of an unhinged world pivots... :D

    On a serious note. I'm aware of the need for license in some cases, such as plays. This seems more like paying to give someone a plug, as in homage. I do have verbal permission to use a real person and their name in this book, which is really what it's all about. For the second book, I'd need permission from Yoko Ono to show how one could defeat the chronology protection paradox to save John Lennon's life.

    As of now it sounds like I've written about 800 pages of trunk novels.
     
  13. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Well, it depends on why you want to write. If you're looking for fame and fortune, it's probably not the easiest route. If you write because you have something to say, and enjoy writing, then it shouldn't matter.

    It seems to me that the bigger potential problem is the reverse -- the non famous person whose name and likeness is used. Yoko Ono is a public figure and it is possible her likeness could be used in a story like this, depending on how the story is written and how obvious it is that it is fictional and whether it paints her in a bad light. Again, though, this depends on a large number of factors, and there's no way to determine in advance whether her permission would need to be secured or not.

    I haven't the slightest idea. But the determination on that wouldn't fall on whether it would be necessary to secure the permission to use either a copyright or a personal likeness.
     
  14. Fitzroy Zeph
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    Fitzroy Zeph Contributing Member Contributor

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    I've recently learned that the legal profession calls this willful blindness. Not a very good defense, apparently.
     
  15. DrWhozit
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    DrWhozit Banned

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    Okay... No Nelsonian knowledge here. I'm really just a little more educated than that. I see it as giving the rights holder the gift of a free plug. I'm not contesting Fair Use. Fair Use is for one's own use, not to further publish. There's mutual benefit in just putting the lyrics in the book and not even saying a word. ( 'ey! This bloke used me bloody song lyrics and now I'm getting more royalties. Bloody lamer! )

    I've slept on it all. (Not the manuscript or the computer. My back's bad enough as it is... )

    The non-famous person died in a terrible accident. Her surviving family loves the book, says she would have loved it and blesses it all. John and Yoko are essentially bit parts revisited in a comical, loving way.

    The songs, as I stated, if left in, do the rights holder a favor more than supply a need to the book. Songs and ditties flow out of me to a disgusting level that enrages people who can't write a sentence like that, so I can write a bunch of new ones. I can be caustic. Perhaps even causational... say of fatwa. If Plant ever reads the book and drops out of the sky into my back yard on a sport shoot to ask me why I didn't just use one of 'is bloody songs in the bloody nook book, I'll refer his bloody arse t' y'all. :D

    The one thing I keep forgetting is that I'm a Jonah. A doomsayer. A harbinger. In five or ten years people are going to be more concerned about finding ways to swim down and grasp some nostalgia over their marble floors and maybe to find copies of their original signed rights paperwork and golden albums, assuming they managed to fit a guitar or two and a Pig Nose amp into their row boat in lieu of their spouse. Printing presses and even computers don't tread water well.

    I had also forgotten that part of the work is to illustrate the book with CG modeled characters, perhaps even do a full blown HD animated movie in say 1920 x 1080 resolution. That's good up to a 39" screen. That will take a couple years. Since the NOAA is currently projecting the arctic ice cap may be totally gone by next September and it's getting even worse in Antarctica, if I concentrate on the artwork, within those couple years we may see the first arctic underwater geysers and tundra fractures occur, so I'll have a better feel as to whether that gift of literary space will be well received or not.
     
  16. Fitzroy Zeph
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    Fitzroy Zeph Contributing Member Contributor

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    No -- not really. I hear that same argument, all the time, given when people take intellectual property and use it without permission or payment.

    We create and sometimes what we create has value and sometimes it doesn't, but it's always ours to decide what to do with it. Being property, it is passed down to heirs when a person dies for them to do with as they choose. Say they decided to sell all the art or writing or photographs to a new entity, with, of course, all the copyrights. The song is picked up by one of tomorrow's stars and becomes a million sellers. No one really cares when there is no money involved. But as soon as there is, ownership becomes very important.

    Also it is just good manners to ask first.
     
    Last edited: Nov 23, 2013
  17. chicagoliz
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    chicagoliz Contributing Member Contributor

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    It's not this simple. It doesn't matter if the rights-holder would actually benefit from the copyright infringement. The point is, it is his permission to give or withhold, and he can do so for whatever reason he chooses.
    Fair Use is about quoting the works when, for example, reviewing the work in question. It's used when preparing scholarly criticism or analysis. It's for educational purposes -- discussing techniques or context or content within a teaching setting. It could also be used in a news reporting situation. There are various factors that go into determining whether a specific use of a copyrighted use fall into the Fair Use exception -- these include such things as whether the use is for a commercial or monetary gain, and how large of a portion of the work is used.
     
  18. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yes, but keep in mind that a commercial use does not preclude Fair Use in the U.S.

    As you say, Fair Use is not just for personal use. It applies to publication as well. Between that comment and the one about taking a non-response as tacit permission, I think this really comes down to a matter of educating oneself. Whichever way you decide to proceed, it makes no sense to do so without learning the basic issues underlying the decision.
     
  19. DrWhozit
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    DrWhozit Banned

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    I think that's a good part of what this thread is about. My point is about when someone simply doesn't respond at all. The point was to give some reasonable time before it is interpreted as a tacit agreement of permission. Let's say 6 months or a year even. If I was to start asking early next year and nobody cares to check their email in a month or so, that isn't damaging my own production schedule. Once I have all the illustrations and final edits complete over realistically 2 years, then, unless the email bounces back, the tacit agreement is in effect as long as I stated all the circumstances clearly in the email and really wasn't asking for much anyway.

    Yes. If I have a song out there, imaging it has only been listened to by a handful of people on YouTube, then someone asks to include my lyrics with credit being given to me, I still have the right to say "No." I don't have the right to hold up the person's schedule while I vacillate on the issue. If that person states clearly that my answer is needed by a certain time and states that if I don't wish to respond I don't have to and, in that case, they will see it as tacit permission, they have that permission if I simply do nothing. Otherwise, if I were to suddenly sue them, they could likely provide an affirmative defense of entrapment.
     
  20. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    @DrWhozit - I'll repeat what I said above about education. As far as the legality goes, at least under U.S. law (which can come into play if you publish in the U.S. of course), everything you've said is false. Your Fair Use comments. The idea that you can interpret non-response as tacit permission (and yes, if you're the rights holder you can vacilate, or not respond, or whatever, for as long as you want). Entrapment? That doesn't even enter into it. My advice - do the research so that you understand the issues, or else hire an attorney who can explain them to you. Then, once you are fully informed, decide what you want to do.
     
  21. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    drw...
    you really need to listen to steerpike and follow his advice... he knows his business... which is being an attorney who i believe has actually handled cases of this kind...

    continuing to argue against logic and clearly defined legality only wastes your time and everyone else's... if you want to go ahead despite the obvious [to all but you, apparently] risks, just do so and stop trying in vain to turn black into white... it ain't gonna happen, kiddo...
     
  22. Fitzroy Zeph
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    Fitzroy Zeph Contributing Member Contributor

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    Can I just say, in plain ordinary English, that you are wrong.
     
  23. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Correct, it does not. There are a lot of nuances and differentiating factors when it comes to legal issues, and it's difficult to cover all of them in a forum such as this.
     
  24. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I don't know why you think this or where you got this idea, but it is simply not correct, at least not under copyright law and other intellectual property laws. Whatever you determine "good manners" to encompass, that is not relevant to legal disputes. There is no law against being a jerk.
     
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  25. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    And just in terms of general contract principles, think of the situation that would result if I could unilaterally write up whatever terms I want, then send those terms to someone, and if they didn't respond it would result in a binding agreement.

    I'll send a letter to TOR. I have a novel I want you to publish, and I want a million dollar advance. If I don't hear back from you within three months, we have a binding publication agreement.

    Clearly this idea leads to some ridiculous results. But sending a request for permission and taking a non-response as permission doesn't even meet the basics for contract formation (and when you secure permission to use a work, you're basically talking about a contractual arrangement).
     
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