Lyrics can hold an immense amount of power. You scribble them on notebooks, repeat them in your head as mantras, adopt as life principles the ones that feel particularly aligned with your soul. You can fuse the words permanently onto your body through tattoos. It’s one of the things that makes engaging with music so powerful and rewarding: geeking out over bars, marveling at phrases and descriptors that feel so insanely correct they must be thoughts taken straight from our own heads. They can begin to feel like they belong to you.
But in the world of copyright and ownership, lyrics have entered a grey area of misuse and misunderstanding, an issue that’s only been heightened by the recent reports of Genius accusing Google for lifting the lyrics published on their site. Who owns lyrics in the first place, and why do they feel like the least copyright-enforced part of songs on the internet?
I spoke with transactional music attorney Erin M. Jacobson about all this. Turns out, if you’ve ever shared lyrics online at all, you were probably infringing upon somebody’s copyright.
Who actually owns lyrics?
Like every other part of a song, songwriters and/or publishers own the copyrights to their own lyrics. Anyone who wants to use those lyrics, or even simply republish the lyrics online, would need to get permission from the owners via a license agreement, which Jacobson says is most used for reprinting lyrics on greeting cards, T-shirts, books, etc.
This practice should be followed on the internet as well, in the sense that anyone who reposts or republishes the lyrics should be getting a license from the copyright owners beforehand. That can range from lyric hosting sites like AZlyrics, lyrics.com, Metrolyrics, Genius, all the way to fans posting transcriptions of the lyrics in YouTube comments.
Wait, even those lyrics under YouTube videos that I use when I want to sing along to my favorite songs are illegal?
Yes, even those helpful netizens transcribing lyrics in the comments out of the goodness of their hearts, out of love for their favorite artists, should be getting licenses.
The spectrum of lyric-sharing is very broad, and it’s made all the more complicated by the grandness and share-friendliness of the internet. That’s partly what makes holding copyright infringers to account so difficult, for better or for worse. Jacobson also acknowledges that the lack of public education and awareness on copyright law is mostly the reason why lyric infringement still runs rampant today: “Like so much on the web, people just put things up either not realizing or not caring that they actually need to go get a license from somebody.” Well, now you know.
What about fair use?
Fair use is usually the go-to defense for those who’ve been accused of copyright infringement. It essentially states that their use of copyright material is okay because it is using the work for educational purposes or because the original work has been transformed in some way. Satires and parodies — like “Weird Al” Yankovic’s songs — fall under this category, as do educational videos and other art that builds on top of an original work. How much or little of the original work that gets used matters, too, and as its written in section 107 of the Copyright Act “if the use includes a large portion of the copyrighted work, fair use is less likely to be found.” So, say using just one line from a song versus an entire verse.
Fair use judgements are made on a case-by-case basis, Jacobson says, though one indicator that something most likely is not fair use is if it’s used for commercial purposes. “Lyric sites have funding, they have ad support, and they're using all of the lyrics,” Jacobson says. “All of them need to be licensed and any of them that are not licensed are just infringing.”
What’s the incentive to go after fans?
Sadly, there doesn’t need to be an incentive outside of the fact that the owner of the copyright simply wants to, and can. Often it's up to the principles of the songwriters and owners. Prince, for example, said in his 2007 statement that he was suing YouTube and Ebay for copyright infringement, that he was going to “reclaim his art on the Internet.” That same year, Universal sent a DMCA takedown to Stephanie Lenz for a video that featured her 13-month-old child dancing to “Let’s Go Crazy.” That incident led to the near decade-long court case, Lenz v. Universal Music Corp., that ended in 2015 and decidedly ruled in favor of Lenz and fair use. (Granted, this case wasn’t over song lyrics, but it’s not hard to imagine something similar happening over a non-official lyric video going viral.)
It also wasn’t all that surprising when Taylor Swift, who wrote in a 2014 Wall Street Journal op-ed that “music is art, and art...should be paid for”, had her legal team send cease and desist letters to Etsy vendors who were selling items with Swift’s trademarks and lyrics printed on them. “It becomes a business decision about whether they want to go after a person or not,” Jacobson says, “because they are completely in their rights to go after them if they want to.”
But don't panic, yet! For the most part, Jacobson says, “You could have a full staff just tracking all of those infringements, but from a business perspective, sometimes it’s just not worth it to spend the time.” Especially for smaller infringements that are generally unknowingly committed by fans, Jacobson says, “You might look at it and say ‘Is the backlash we're going to get [by taking action] going to hurt the artist or the writer, more than its actually going to help them?”
At the end of the day, copyright law is severely outdated.
The Digital Millennium Copyright Act — an amendment to the Copyright Law most publishers have been using to take down copyright infringements — was signed by Bill Clinton in 1998, when the internet was far less of a force than it is today. More recently, the Music Modernization Act passed in October 2018 in an attempt to enforce royalty rates and payments in the age of streaming, but there is still a huge gap when it comes to addressing the new ways in which music listeners interact with and share songs and lyrics currently.
“Technology has moved so fast that the law hasn't really caught up with it yet so that’s the first problem,” Jacobson says.“Hopefully, we can get the lyric sites licensed, but the law and policy take a while to get changed. The Music Modernization act was several years in the works but it’s definitely a starting place for getting songwriters and rights owners fairly compensated for the music that they make.”
Add in the lack of resources and technology available to actually go after all cases of infringements in terms of lyric republishing, and it means that songwriters and publishers will always be one step behind from being fully compensated for their work. Which sucks. So the least we can do is pay for our music.
