Bo's bLAWg - Use of Quotes and Song Lyrics

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts. www.calawyersforthearts.org  Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Could I be sued for using somebody else's quotes?  What about song lyrics?

I knew I was going to get this question sooner or later.  It is a tough one.

There are at least three legal rights that bear on the question of whether or not an illustrator can make commercial use of an existing quote or song lyric.  These are Copyright, Trademark and the Right if Publicity which I wrote about last month.
http://annietroe.blogspot.com/2016/02/bos-blawg-right-of-publicity.html

With respect to Copyright, let’s first clarify that words, phrases and titles are not by themselves copyrightable.  See: http://www.copyright.gov/circs/circ34.pdf

However, when the words or phrases you want to use are contained in a larger, copyrighted work, then they are indeed protected by copyright.  The same rule applies if the phrase you want to use is a quote, whether from a copyrighted speech or a catchy aphorism used by a writer or one of her characters in the course of dialogue.  Use of the same content in your commercial product without the permission of the copyright holder, whether in a greeting card, or other paper product, is an infringement.  The Copyright Office addresses the same question in one of its own FAQs:   http://www.copyright.gov/help/faq/faq-fairuse.html

“If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. However, in cases of doubt, the Copyright Office recommends that permission be obtained.”

Then the question is whether or not the Illustrator’s particular use is defensible as a “Fair Use.” See my Fair Use bLAWg from last May:
http://annietroe.blogspot.com/2015/05/bos-blawg-fair-use-of-logos.html

Considering the four part Fair Use test: 
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.

I believe it is reasonably clear that while the substantiality of the amount used may be minimal, (factor 3), the Illustrator’s commercial use and the fact that her use effectively eliminates the copyright holder’s market to license the same quote for similar use would be sufficient to defeat the Fair Use defense. 

When considering whether or not pithy sayings might be protectable on their own, I ran across a case by Ashleigh Brilliant ( http://www.ashleighbrilliant.com/ ) who has successfully defended his copyright of his collection of original sayings.  I can also vouch for the fact that certain quotable essayists and humorists have sent out ‘cease and desist’ letters to some of my clients for their use of quotes, including the Estate of Erma Bombeck.  However, given how broadly her quotes are now disseminated online, I must wonder if they gave up trying to stop commercial use.

As for trademark, if the quote or lyric you want to use is being utilized as a trade or service mark then your use could cause someone to believe that the trademark holder is the source of goods on which you use it.  That is the gravamen of trademark Law – to avoid just such confusion as to origin -- as noted in my May 2015 bLAWg:  http://annietroe.blogspot.com/2015/05/bos-blawg-fair-use-of-logos.html  So, you want to make sure that you are not using a pre-existing catchy saying associated with another company to attract prospective purchasers of your goods.  Many such phrases, such as “Show Me the Money,” “ET Phone Home,” “Got Milk” and “Just Do It,” are trademarked, and cannot be used by you without likely objections, if not claims, by their owners.
Finally, if you are using a quote, and in conjunction with the quote you use the author’s name, that is a use that can easily been seen as a violation of that person’s Right of Publicity, even if it is just being used to identify the source of her quote!  What if you were to use the quote without the author’s name?  Would that diminish sales of your product?  If so, then clearly there is a commercial advantage to using the name.  At the same time, if you go to the author or her agent or publisher for permission to use the quote, it is very likely that the permission will come with the condition that the quote be attributed.  And that is a large part of the reason a royalty payable on your sales will likely be required in exchange. 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com