Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Creating Book Quiz App

Dear Rich: I'd like to make an iPhone app that would consist of thousands of questions each with four answers from different books. The quizzes/questions actually ARE about the books  and would contain copyrighted terms, important sentences or names.  These quizzes are meant to be taken AFTER a user reads the book, so we don't compete with book authors, nor is that our intention. We also intend to clearly give credit for every single book to author that wrote it. Here is an example and here is another example of sites that already exist and are similar to what we want to make (difference: they make money by users spending more time on their site, we make money by charging $.99 for extra features). Well, our idea is for people to read books MORE and take quizzes after them.  If you keep the questions varied, take little from each book -- as in the two examples you provided -- you're probably fine. But because we don't know how much borrowing you will be doing, we're unable to bless your endeavor. Of course, we support your goal -- people reading more books -- but, as the cases cited in this recent Dear Rich entry demonstrate, your altruistic goals will not excuse an infringement. Ditto for providing attribution. As for your claim that you're not competing with authors, we don't think you are ... but that's ultimately up to a court to decide.

Wants to Use Northern Exposure Stills, Clips and Song in Documentary

we have nothing to say about
this poster but thought if we
added a caption we could
claim it was fair use! 

Dear Rich: I am filming a documentary that will be distributed FREE OF CHARGE on the internet. Pro Bono. The documentary is about the TV series Northern Exposure and the title of my documentary is "Our Town Cicely" In my documentary I will be attempting to use as much material as possible in a "Fair Use" context. I know you are not a lawyer and I do not hold you to any advice, but in your opinion can I use images or pictures of the cast members from the show in my film? Also I would need to use some of the clips from the TV series too. It is my idea that I can use the clips as long as I am critiqueing them or at least putting subtitles with some narrative commentary at the bottom on how this scene was relevant and how good it was etc. I also wanted to use a song from the show titled "our town" by Iris Dement. But it is owned by Warner Brothers. Your idea that adding subtitles creates a "fair use" exemption is fashionable and even big shots are making similar claims. However, we think that adding a caption is like putting an Instagram frame on a photo ... by itself, it won't be enough to defeat an infringement claim.
Claiming fair use. There are two big hurdles with fair use: (1) you will only know if it is fair use if a judge confirms it, and (2) you probably can't afford to find out. Your best option is to review previous fair use cases (and we've assembled a compilation here) to see how courts rule. It's true that some factors are in your favor: it's a not-for-profit factual presentation and you are commenting upon the show. But there are other factors in play, for example how much material is used -- a snippet of a song versus the whole tune, two seconds of a clip versus the whole scene, etc. And are you really commenting on the material or reproducing it for its entertainment value? As you'll notice from looking at case summaries, many artists, authors and entrepreneurs have failed with fair use claims when deconstructing TV shows, movies, and books. For that reason, we can't say whether your fair use argument will win the day.
That Said Dept. We hate to see you ditch your plans for a Cicely documentary. Perhaps if you keep things below the radar, nobody will notice or care. For example, if you avoid using a copyrighted song, you won't trigger complaints from sites like YouTube that use audio filtering software. On the other hand, you could also take the more risky approach of, "What are you going to do about it?" and see how far you can go before (or if) you get a cease and desist letter. BTW, please note the comment below, referring to American University's fair use guidelines for documentary filmmakers.

Wants to Excerpt News Articles

Dear Rich: I'm in the process of writing a book. I'd like to use excerpts from news reports from newspaper articles as introductions to each chapter. Is this covered by copyright? Yes, news articles, like all original textual works, are protected by copyright ... unless of course, they're in the public domain. However, your excerpts from these news articles will likely qualify as a fair use (click for some examples), provided you keep them  short -- for example, 50 to 100 words. In that way, your use appears to fit within fair use guidelines as a "transformative" and excerpted use of nonfiction text for purposes of commentary. We provide our usual caveat when it comes to fair use -- the final word in any fair use dispute is a court, so there are no guarantees (as demonstrated in this recent case). And also, let's not forget how strange some companies can be in their pursuit of copyright "justice".

Rules for Reproducing Copyrighted Evidence

Dear Rich: I'm filing my first pro se case for copyright infringement. Is it fair use to make a copy of something to use as a evidence (or exhibit) in court. Courts typically consider it a fair use when copyrighted material is reproduced for a court proceeding. Here are some examples:

• The Second Circuit ruled that it was a fair use to reproduce a series of web essays as supporting evidence. 
• A New York district court reached a similar result when copyrighted videos were introduced as evidence. 
• A Michigan federal court also reached the same fair use conclusion when construction photos were introduced into evidence. 
• The Tenth Circuit excused copying of a copyrighted work for litigation purposes as a fair use in 2007. However, the Tenth Circuit refused, unlike the Ninth and Second Circuits, to establish a fixed rule that such uses, by their nature, are a fair use. Instead, each case should be judged on its merits.
• The Ninth Circuit has stated that the use of copyrighted material as evidence in judicial proceedings is fair use, so long as the users do not reproduce the work for its “intrinsic purpose.” 

What's an "intrinsic purpose?" It's a use that is for the same purpose as the copyright holder intended. For example, it was not a fair use when one party copied photos after it refused to pay the $15 per photo fees incurred by a trial evidence firm that had prepared the photos for litigation. In other words, the photos were prepared for the litigation and one party sought to avoid paying for their preparation.
PS. Good luck with your pro se case. (Here's the strategy that the lawyers on the other side will use against you.) 

Can I Let Amazon Search Inside Self-Published Book?

Dear Rich: I have recently self-published my first book and would like to allow Amazon to present it through their "Search Inside The Book" (SITB) feature. However, it's not clear to me whether I have the legal right to do so, as my book contains some quoted material to which others hold the copyright (material which is either used by permission or is fair use). From a legal viewpoint, would I be seen as granting Amazon permission to use material copyrighted by others? How do I determine whether I have the legal right to allow Amazon to present my book through their SITB program? If you have the legal  right to publish other people's material in your book -- whether by permission or via fair use -- you likely have the right to permit the "Search Inside the Book" features.
Amazon's POV. As you know, it's not possible to ask Amazon to exclude specific pages or materials from SITB books. The retail behemoth has the final say as to what's SITB-able (although opting out of the program is possible, even for self-publishers). We're not aware of any lawsuits testing the copyright aspects of SITB, and we assume that Jeff Bezos' legal staff views SITB  as the virtual equivalent of browsing in a bookstore (and therefore a fair use).
Your permission agreements. Technically, it may be a violation of your permission agreement to permit the digital display of SITB segments. However, we doubt that anyone will complain about the issue because it will probably be viewed as an accepted part of the book-selling process. However, if your permission agreement specifically prohibits this type of use, you're best off opting out.
Fair use. As for the segments for which you can prove fair use, you should be fine. That's because, if your fair use arguments succeed for the print or electronic versions of the book, they will likely succeed for the SITB virtual display.

Can We Use Yearbook Photos in Our Music Video?

Dear Rich: Our band has written and recorded a song that is about looking back at times past when it was "just you and me and some good old rock & roll." We are creating a lyrics video and have decided to use candid photos scanned out of high school yearbooks from the late 70s and early 80s. The photos will be altered with various effects to enhance the old, nostalgic look. Nonetheless, specific photos and faces will be recognizable. Obviously, the purpose of the video will be to promote the song and the band and, hopefully, drive sales. What kind of copyright problems are we facing? Who owns the rights to the photos? Do we have a fair use defense? The rights to the photos are most likely owned by the yearbook photographers. (We've addressed yearbook photo issues a few times before and this post discusses ownership.) The subject of the photo -- the high school student -- can only hassle you if you defame them or  invade their privacy or use the image in an ad or an endorsement (and we think a brief appearance in a music video is unlikely to trigger the right of publicity).
Fair use? We're not sure about your fair use defense; it all depends on whether your use of the photo could be considered transformative. Maybe ... but it really doesn't matter because as readers of this blog are aware, even when the experts claim it's a fair use, that often has little practical effect.
Bottom line dept. Are yearbook photographers from 30 and 40 years ago likely to see your video, recognize their photos, and complain? We think the chances are slim.

Can Husband Use Interview He Did With Time Magazine?

Dear Rich: My husband did an over-the-phone interview with Time Magazine years ago and wants to use the resulting article in a book he is writing. He didn’t sign any sort of release form for the 172-word article, which also included a photo taken by our local newspaper. Although the article is cited in MasterFILE Premier and Business Source Premier online databases as a whole article, Time claims it is part of a larger article that must be reprinted at a cost of $1,500 to $3,500 for permission. They state that “all Time Magazine articles must be reprinted in their entirety as originally appeared in the magazine along with the logo, credits and bylines.” They decline to explain this statement or to provide content until a contract is signed so it is unclear what they define as the whole article. It is also unclear to us whether they are suggesting printing an image of the article including pictures or just the text, which is what we requested. This whole interaction seems suspicious. Can my husband claim any ownership to the interview? Is it usual for a magazine to require one to reprint content one has no use for or is something strange happening here? We think your husband has a reasonable fair use argument for reproducing the Time article text in his book -- particularly if he is commenting on the article -- but we think you should first consider these issues:

• Indemnity. If your husband deals with a book publisher, the publishing agreement will likely require you to pay the publisher's legal fees for any disputes caused by the book. Even if you succeed with a fair use dispute, you'll end up footing your legal bills and the publisher's, too.
• Vetting the book. Also, a publisher may require that you provide proof of permission for all non-original material. Chances are that the publisher will not want to take a chance on your fair use arguments (even if you cite the Dear Rich Staff as your source).
• Publish it yourself. If you're not dealing with a publisher, your biggest concern is whether someone from Time Magazine's licensing department will find out about your use. If so, you may likely get chased, perhaps all the way to the courthouse. If Time doesn't see it (or chooses to ignore it), you can pass Go and collect $200 (metaphorically speaking).

Who owns the interview? As we've discussed before, interviews are one of the gray areas of copyright law. One legal theory holds that an interview consists of two separate works: one work created by the interviewer's questions, and the other created by the subject's responses. These works may be protected under traditional copyright principles (or they may be protected under what's referred to as common law copyright -- for example, some state laws currently provide common law rights to spoken statements). Under the 'two-separate works' approach, you could reproduce your husband's words, but not the rest of the material in the article.
Alternatively, some legal scholars argue that a better approach is that the interviewer and subject jointly create one work. Under that analysis, the interviewer and the subject are joint authors. In that case, either party can use the interview for any purpose provided that the party using the interview accounts to the other for any profits. We're not sure that applies to your situation, because it sounds as if the article goes beyond the Q-and-A format. (Anyway, you can read more on these two interview approaches at the Publaw.com site.) (Note that one court -- dealing with an interview with Ernest Hemingway -- hinted that Hemingway's failure to limit usage at the time of the interview implied unlimited use by the interviewer!)
Bottom line dept.  We think this is one of those risk analysis situations. If you have a strong desire to use the article and are self-publishing to a limited audience, consider taking the risk. If you're planning on a bigger launch and a broader audience, you may want to limit reproduction to your interview responses and short snippets from the article for a stronger fair use argument. As for any photos, you would contact the local newspaper and find out whether they sold all rights in your husband's image to Time, or whether they can license the photo use to you for your book.

Can I Make a Dave Matthews Band Quiz?

Dear Rich: I am in the process of creating a Dave Matthews band quiz. It has questions from all aspects of the bands background, songs, and albums…etc. Would there be any copyright issues by creating these questions? Also, if down the line we were to charge a fee to download ‘more questions’ on this app, would that get into a sticky copyright area? Wow, the Dear Rich Staff feels old! We remember a time when you could listen to pop music without getting tested. Personally, we like the idea and we're in favor of anything that will put off dealing with life's big issues!
Right, you had a question. You can probably get away with your trivia app assuming you can make it past the app store gatekeepers (at the Apple Store and Google) and nobody from the DMB, the band's management, the band's publishing company, or the band's record label sees your app and cares enough to challenge. If the app is challenged, most likely you'll have a problem. First, the app store where it is located can terminate availability based upon its own analysis or a DMCA complaint (we've got a legal guide for app makers that explains this route), and second, the copyright owner (the band, label, publisher, etc.) could sue for copyright infringement or possibly trademark infringement. We base this conclusion on three previous cases involving trivia books (we wrote about them in this entry). We're not saying you might not eventually prevail but we would think twice before investing considerable time in commercializing this venture.

Why is Faulkner Suing Woody Allen?

Dear Rich: You have been advising people that it's okay to use quotations without infringing ... but the Faulkner estate recently sued several companies for using a Faulkner quote.  Is it okay or isn't it? Speaking of Faulkner, we recently read The Sound and the Fury for the first time and we have to say that was one heck of a confusing book. We kind of liked it but if it weren't for the Cliffs Notes-style explanation in Wikipedia, we're not sure we could positively distinguish Quentin and Ms. Quentin. We tried the movie version for clarity and that was a big mistake (although that's a pretty unique cast!) Right, you had a question. Yes, the Faulkner estate recently sued over the use of two Faulkner quotes. The first lawsuit is over the quote “The past is not dead! Actually, it's not even past." The estate sued Sony Pictures over the use of that quote in Woody Allen's "Midnight in Paris," (more details here), and they also sued Northrop Grumman and the Washington Post over an ad that used a second Faulkner quote, "We must be free not because we claim freedom, but because we practice it," (more details here). The two complaints are similar (see the movie complaint; see the Grumman complaint). They both have three claims --  copyright infringement, Lanham Act violation, and commercial appropriation. We'd bet our mortgage that the copyright infringement claim will fail for the reasons expressed in yesterday's blog. As for the other two claims, we have a feeling that the estate is unhappy with the associations (military contractors, Woody Allen) and is trying to push the limits of "endorsement" claims, which could be troublesome considering that Mississippi has little precedent for right of publicity claims.
Takeaway Dept. We'll stand by our position on copyright and quotations but add the caveat that being "right" doesn't mean that copyright owners can't sue you. If you're planning an advertisement that uses a quote from someone who is alive or recently deceased, get it reviewed by a lawyer.

Wants to Use DVD in Classroom

Dear Rich: I’m a school librarian. I recently ordered DVDs for a teacher for a class on Forensic Science, and the packaging comes with the warning “For non-commercial, private exhibition in homes only. Any public performance, classroom use, or other use is strictly prohibited" (emphasis added). Can they make the "classroom use" claim, or are they just trying to bully those who don’t know about the Section 110(1) face-to face teaching exemptions? I know the teacher in question wants to use the DVDs as an integral part of her curriculum. The Dear Rich Staff is a big fan of forensic science and we remember studying it as a co-major back at Indiana University. Alas, we never did put it to use, except perhaps to analyze the raccoon prints left on our dock recently.
Right, you had a question. If the teacher's use of the DVD qualifies under the face-to-face exemption of the copyright law (below), then it is not an infringement and you can disregard the "warning." (There is an exception, described below.)

17 USC 110 Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

What if "no classroom use" is a condition of a license? There is an exception. Many companies have attempted to circumvent the copyright laws (some successfully) by forcing the consumer to license the work, rather than purchase it. However, in order to create a binding license -- one that permits a company to step in and stop so-called unauthorized uses -- the company needs to prove that the end user entered into an agreement. As we've mentioned before, the most effective end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades -- and courts have even enforced shrink wrap agreements in which tearing open the shrink wrap signifies that the end user agrees with the license. Check your method of ordering to determine if you agreed to any licenses and check the packaging for signs of a license agreement. As a general rule, the easier it is to demonstrate that the other party agreed to the terms and conditions, the easier it will be to enforce the agreement. If the license is part of the packaging, it should be prominent and obvious that breaking the seal enters the end user into a license agreement. Our gut feeling is that the "warning," by itself, probably has little legal effect.

Wants to Create Mobile Movie Trivia App

Dear Rich: We want to create a trivia game for mobile devices. The topic is movies characters. We want to show some drawings too (made by our artistic staff). Is there a copyright problem with using their names and showing drawings representing them, even if some characters are from animation, or fantasy movies? If permissions were like traffic signals, our staff would give your mobile app a yellow light. You're probably fine but proceed with caution. As we've discussed before, movie characters are often separately copyrightable from the movie(s) in which they appear. If the character is separately protectable (or if the still used from the movie is protectable), your drawings would likely be derivatives and the combined use of character name and image could be considered infringing. We say "could be" because this legal analysis is likely to be overkill. If we examine the cases in which trivia merchandise is pursued (as we did at a recent post), it's usually because it focuses on one movie, TV show, or book. That is, the owner of the movie, book, or TV show feels as if their work is being ripped off. We think you can  conclude that as long as you don't focus your trivia game on one work or character, then the odds diminish as to whether anyone will be motivated to chase you down (and your chances of claiming fair use increase). 

Failure to Respond to a Permission Request: What Does it Mean?

Dear Rich:  In a recent post, you made the comment that it’s inefficient for large companies to deal with and track minor permissions requests.  I’m curious about situations where a request is made but no response is given.  While I know a lack of an answer does not equal permission, does the lack of an answer do anything to strengthen the fair use argument?  In other words, would my ‘good faith effort’ in trying to seek permission  weigh in my favor if I resorted to a fair use argument? A related question, regardless of how the previous question is answered, is it appropriate to associate no response with a lack of care about the particular request, thereby indicating a lower risk of being pursued?  A failure to respond to a fair use request should not strengthen or weaken a fair use defense. For example, in the Pretty Woman case (in which rappers borrowed the first line of the Roy Orbison song), the music publisher had refused the permission request. Despite the refusal, the rappers went ahead with their plans, and the Supreme Court ultimately determined that it was a fair use. The reason why the copyright owner's response won't matter is that a fair use analysis happens after a court has determined that infringement has occurred. In other words, by the time a court looks at fair use, permission doesn't matter. 
Why seek permission? If permission is unnecessary for a fair use defense, why ask for it? First, acquiring permission bypasses the need for a legal dispute  (and the uncertainties and expenses associated with it). Second, seeking permission also demonstrates your good faith and may mitigate the damages assessed if your fair use defense fails and there is a negative decision against you.
Does a failure to respond to a permission request mean that there is a lower risk of being pursued. We doubt it. Although, as anecdotal evidence, we can offer this story: Our mom called a lawyer at a well-known movie company for permission for her nonprofit to use a licensed character in a presentation. His response, "You never made this call." In other words, having to say "no," would have obligated the attorney to follow up. 
FYI Dept. -- Silence doesn't mean legal assent. We remember getting letters from lawyers that would say things like, "A failure to respond shall confirm blah, blah, blah." But 99.9% of the time that's just not the case. Inaction, or silence rarely triggers any legal conclusion (either affirmative or negative). For example, there's a famous 19th-century English contract case in which a man offered to buy a horse and stated that unless he heard otherwise from the seller, “I consider the horse mine.” The British court ruled that his assumption didn’t create a contract; the other party’s acceptance had to be clearly expressed. 

Wants to Use Lion King Screenshot

Dear Rich: I want to use a YouTube screenshot of Lion King, the scene where he talks to the ghost of his father, as an example of human trait of denying death, and clinging to dead parents. From what I've read, I think I'm clearly within "fair use," but would still like permission. When I mail my request, I do not know whether to include the screenshot, or just a description. Would just having the screenshot be considered an infringement? We wouldn't worry about possessing the screenshot or furnishing it as part of request for permission. That's fairly common when asking for permission and Disney is not going to call in the lawyers over that.
Fair use? You haven't explained in what media you intend to use the screenshot or what size. In general, your intended republication sounds like a fair use --  you're using the photo for a transformative purpose, to comment on an anthropomorphic personality trait. Of course, the less prominent your use (for example, not on the cover of a book or your use of a smaller image versus a large one), the more likely the fair use defense may work. But as we always say, you can only prove fair use in court ... which means that if Disney learns of your use (and cares) you'll have to give up on the imagery or go toe-to-toe (or is it head-to-head) with the Disney legal team.
Speaking of the Disney legal team ... We have a feeling that unless you're representing a major website, book publisher, or film production company, Disney is unlikely to respond to your permission request (or if they do, they will deny it). That's because it's generally inefficient for the company to deal with and track minor requests, and much easier to simply deny them. In that case, you'll be in the odd position of having been told by Disney that you can't use it. Because of that potential result, many people with self-published or independently distributed works bypass the permission request. These people don't expect Disney will learn of their use and (like you) they may have a decent fair use defense as backup.

Can I Use Screenshots and Icons in Training Manual

Dear Rich: I have to write a training manual for Adobe Photoshop. I will use it to teach a community education class and will put it on a website for people to download. Can I use screen shots and icons from Photoshop in the book if I give credit to Adobe? I also have to write one for using Internet Explorer and Gmail. Can I use icons and screenshots from those programs as well? Yes, yes, and yes. Icons and file menus are generally not considered to be protectable under copyright law following the 1994 ruling in Apple Computer v. Microsoft. As for reproducing screenshots, at least one court has labeled it as fair use (in a comparative advertising setting). Considering the thousands of how-to websites, do-it-yourself videos, and published computer guides that make use of similar screenshots and icons, we'd say you'll be fine. (From a practical perspective it also doesn't make sense for these companies to chase down people whose guidebooks encourage the use of their products.) Our only caveat would be to avoid uses of screen shots strictly for commercial purposes instead of commentary, for example copying screen shots of copyrighted sheet music. Prominent disclaimers -- "Not affiliated with or endorsed by Adobe" -- may help prevent any trademark claims by dissuading readers from believing you are connected with these companies.

Wants to Use Quotes About God

"God the Father" by Pompeo Girolamo Batoni

Dear Rich: Question No. 1 - If one is writing a book on quotations arranged by topic/subject, does the author need to get the permission for the quotations. Question No. 2 - I am writing a non-fiction book about the variety of human thoughts on God. My book will contain a lots of quotation from old and new ages about God. Do I need to get permission to use the quotations from different people.  Question No. 3 - My book has a section on how children think about God and I want to use about six independent short quotes from a book called "Children's Letters to God." I am referencing this book and other books on the same topic and using 4-5 quotes from each book as illustrative examples for my chapter on how children think about God. We sought divine advice on your questions but none has arrived as of time of our publication. So, we're forced to spout some time-honored copyright rules. Your ability to use quotations and short phrases is partially based on fair use, partially based on the fact that copyright doesn't protect short phrases, and partially based on the fact that many quotes are so short as to qualify as being "trivial" or "de minimis" uses. In addition, you don't need to worry about using quotes that were published before 1923 (see this chart for more details). As for using several quotes culled from a book that features quotations from children's letters, the rules may be a little different, depending on how long the quotes are, how many are taken, and whether your use qualifies as a fair use. In addition you need to avoid taking so many that you are stepping on the other author's compilation copyright.

He Wants to Create 'Book Summary' Business

I have an idea for a book summary business similar to the business book summary sites around the web, but I want to make sure I'm clear about the legality before I begin. In short, do I need permission from the copyright holder to create these summaries for sale? This is assuming that the summaries would be in my own words as much as possible and little to no direct quotations if needed. If it is your own expression and you're not quoting from the text, you should be fine. What can land you in hot water is extensive use of excerpts (or serious paraphrasing) and similar "copying" behavior as outlined in these literary fair use cases. BTW, here's an example of a lengthy, non-infringing summary, of one of our favorite new books.

She Wants to Use a Word From Cheesiest Song Ever

Dear Rich: I'm trying to avoid seeking permission to mention a song in a novel I'm writing and plan to self-publish. I understand that song titles can't be copyrighted, but I'm wondering if quoting a single word from a named song will require permission, given the context: two of my characters are arguing about the lyrics to Kiss From a Rose, with one saying that a grave is mentioned in the song, and the other contending that the word is "gray" (which my research tells me is the case). One character also says that the lyrics refer to a kiss and a rose, but since these words are given in the song title, I would hope that they are safe. Am I on dangerous ground with the grave-versus-gray dialogue? Also, if one of my characters refers to Kiss From a Rose as "like, the cheesiest song in the world," would this be considered libelous? Let's address your last question first. You are not committing libel because you are not making a false statement. "Cheesiness" is defined as "trying too hard, unsubtle, and inauthentic." Therefore, we can conclude that Kiss From a Rose is actually like, the cheesiest song in the world (it's number two of cheesy songs on this list). Even if it was the third or fourth cheesiest song in the world (or didn't even make the top ten), you and your characters are free to diss any Seal song under First Amendment principles.
Using lyrics. It's fine for your characters to talk about songs and even quote one or two lines under fair use principles. (Spoiler Alert: In our humble opinion, Kiss From a Rose contains some of the strangest, most incomprehensible lyrics ever!) In any case, you should probably only consider seeking permission if you're using more than a couple of lines. We talk more about when permission is needed for song lyrics (and how to get it) in this book.

Using Willie Nelson Statue on T-shirt

Dear Rich, I am in the process of setting up a design company that will sell counter-culture t-shirts online. Additionally, my friends and I are creating a web comedy show where we insert commercials to advertise our prospective websites to drive traffic and increase sales. Both projects push boundaries due to the market we are trying to capture. (1) In one piece, I have photographed a toy dragon made by Schleich and applied my irreverent psychedelic pop technique. Others have photographed Star Wars, Barbie, Anime or GI Joe toys as apart of their artwork.I believe I can claim rights to fair use. Is that correct? (2) In another piece entitled Pothead says, I have used a portrait of George Washington that is labeled as public domain. I should be in the clear, but I want to make sure. (3) In a third piece, I have photographed a public statue of Willie Nelson that is just off the sidewalk in downtown Austin. Is this acceptable or is it a question of whether the statue is on public or private property? Can I claim fair use as well? Please repeat after us: I will not rely on fair use as a defense. As we have explained before, fair use -- no matter what you read -- is primarily a pay-to-play defense. You have to pay a lawyer to convince a judge it is fair use. The only exception is if your situation is on all fours with a previous fair use case. To get an idea if a case fits your needs, check out this summary of fair use cases prepared by the Dear Rich staff. (And check out the Fair Use site.) As for your specific questions, we've answered them, below.

1. The Dragon.  You should presume that the Schleich dragon is protected under copyright law. Your "irreverent psychedelic pop technique" may create a distinct derivative work, and maybe you could make a fair use argument (see above) but if Schleich saw your work and chose to hassle you, they could drag you into court and make you prove your fair use claim. (It's true that in one case, an artist was permitted to use Barbie dolls in his works but even if your facts are the same, keep in mind that the artist was dragged through a lengthy and expensive court proceeding.) Anyway, with so many public domain dragons, you may want to choose one of those instead?
2. George. A portrait of George Washington made during his life time -- for example, one of the George Stuart portraits -- is in the public domain. A portrait first published in the U.S. before 1923 is in the public domain. Works  published after 1922 may or may not be in the public domain (check this chart for more details).
3. Willie. The Willie Nelson statue is protected under copyright law. It doesn't matter whether the statue is viewable in public or private. We assume the sculptors own the rights (unless they transferred them to someone else) and if the copyright owners find out about your use (and care), they could hassle you. Again, a fair use argument is possible but see above.

When Does a Version of a Song Qualify as Fair Use?

Dear Rich: I am working on a tribute album and I'm trying to figure out the distinction between derivative works and transformative fair use.  At what point is a song transformative enough to be considered fair use, vs. a derivative work? And how can I use this knowledge to negotiate with publishing companies, prior to recording/selling and performing the songs? If I am not given permission to create or sell a derivative work and I only perform them live, what is the risk and potential liability of infringement? Sorry, we would have gotten to your questions sooner except we've been obsessed with creating animated GIFs ever since Photoshop Elements 10 arrived (finally, you can change the timing on the animation). We expect to get over it soon, and yes, we know they're annoying to watch. 

Right, you had a question. If you're doing a tribute album, we assume you're doing cover versions of existing songs and that it is a "tribute" to a band or performer. There are two legal rules at work here.

• Compulsory license. First, under Section 115A of the Copyright Act, a music publisher must permit you to record any song that has previously been recorded and released to the public. However, you cannot use the compulsory (mechanical) license if you change the basic melody or fundamental character of the song. For example, a singer cannot alter a song’s lyrics without permission. That said, many people change elements of songs without a problem (as we mentioned in this previous entry).
• Derivatives and fair use. A derivative work is one that is based upon or modifies an existing work. A fair use is when an existing work is used in such way that a court, balancing four fair use factors determines that permission is not required. The transformative quality of the work is an important factor but so is another factor -- the amount and substantiality of the portion taken. In most music cases where fair use is found it's because a relatively short segment of the original work is used. We don't think providing a full-length cover of a song will qualify as a fair use -- even if it is as transformative as this.

The "So What" Issue. Even if you believe you have a strong fair use argument, a music publisher is likely to respond, "so what?" Only a court -- not you or your lawyer -- can verify that it is a fair use, so a publisher is unlikely to feel pressured to grant permission based on your arguments. What you might wish to consider --  although this advice is contrary to Section115A --  is to simply pay the mechanical license fees even though you have modified the songs. Our experience is that most publishers just want to be compensated and don't want to have to deal with special permissions. As for performing the songs live -- any venue where you play will have to pay performing rights fees for each song -- so it is unlikely that music publishers will care about your version just as long as the song title is correct.