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Wikilegal/Fair use protections for posting music lyric excerpts and translations

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A contributor asked for input on whether or not Wikipedia can safely adopt the following rule:

In the case of a non-English language song with an English title it may be helpful to readers to mention the first line, or first phrase, of the song with (a) original script (b) romanization (c) translation. If this is done the name of the lyricist(s) and a WP:RS source should also be given. The phrase must represent only up to 10 percent of a copyrighted musical composition, and no more due to Fair Use restrictions on poems and lyrics.

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Song titles are not eligible for copyright protection in the United States,[1] but song lyrics are.[2] Accordingly, the copyright owners of song lyrics have the exclusive right to reproduce, publicly display, and prepare derivative works from their copyrighted lyrics.[3] Posting an excerpt of the original script of copyrighted song lyrics is a reproduction of those lyrics; posting a romanization or translation of copyrighted song lyrics is creating and displaying a derivative work.[4] Whether or not posting excerpts and translations of song lyrics is allowed on Wikipedia depends on whether the reproduction or translation meets the Wikipedia policy on non-free content and falls under under the "fair use" exception to copyright.

The Fair Use Defense

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Fair use essentially limits the exclusive rights of copyright holders by allowing certain reasonable uses of copyrighted material without requiring the copyright holders’ consent.[5] The previously judge-made doctrine of fair use is now codified in 17 U.S.C. § 107. Congress deliberately defined fair use in broad terms, because it did not intend to change, narrow, or enlarge the doctrine in any way.[6] Despite its codification, "fair use" remains one of the most unpredictable areas in all of copyright law.

The proposed rule states that any mention of songs lyrics "must represent only up to 10 percent of a copyrighted musical composition" due to fair use, but this limitation is not an accurate restatement of the law. In fact, the Copyright Office warns that, "[t]here is no specific number of words, lines, or notes that may safely be taken without permission."[7]

Section 107 controls the fair use inquiry and reads in relevant part:

[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

Accordingly, whether any use of copyrighted material without consent of the copyright holder constitutes fair use, is a fact-specific inquiry guided by the four factors listed in 17 USC § 107.

Conclusion

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In our view, based on the factors listed in Section 107 and the guidance issued by the Copyright Office, bright line rules should be avoided with respect to fair use. While including the original script and translation of the first line or first phrase of non-English songs may be helpful to Wikipedia readers, we believe that the inquiry as to whether copyrighted content is fairly used under U.S. copyright law or meets the non-free content policy requires a more nuanced evaluation of the content and its use.

Notes

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  1. ↑ See U.S. Copyright Office, Circular 1 on Copyrights (May, 2012) ("Copyright does not protect names, titles, slogans, or short phrases."), available at http://www.copyright.gov/circs/circ01.pdf ).
  2. ↑ See ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir. 1996) (Song lyrics enjoy independent copyright protection as "literary works")(citing Nimmer on Copyright), available at http://www.leagle.com/decision/199615696F3d60_1144.xml/ABKCO%20MUSIC%20v.%20STELLAR%20RECORDS.
  3. ↑ 17 U.S.C. § 106.
  4. ↑ 17 U.S.C. §101 (defining a "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work". ).
  5. ↑ See en:Fair use (last modified March. 10, 2014). See also: Rich Stim, Copyright and Fair Use Overview (NOLO PRESS), available at http://fairuse.stanford.edu/overview/fair-use/.
  6. ↑ See H.R. Rep. No 94-1476, at 66 (1976), available at https://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476).
  7. ↑ U.S. Copyright Office, Fair use (June 2012), available at http://www.copyright.gov/fls/fl102.html.
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