Copyright Question

  • SVS Team SVS OG

    I think this might have been talked about before, forgive me if I forgot but would illustrating a song have issues with copyrights? For example I would like to take a song and use its lyrics to illustrate a book. Maybe not to sell and make money, but you never know if it could later down the road. I would assume its almost like fan art, and fan art you can sell. What do you all think?

  • SVS OG

    @chip-valecek Seems like you'd need permission from the songwriter. If it's your song you need to get the copyright for both the song and the illustrations. Might be best to google it.

  • @chip-valecek Do you mean illustrations based on the song but not including the lyrics?

  • Moderator

    I would think if you don’t include the lyrics as text then it would be alright. It would become your version then, like will terry’s little’s. It’s just different enough. That being said, i’m not a lawyer. Lol. Just going off the law office of Will Terry YouTube 🤪😂

  • SVS Instructor Pro

    @Chip-Valecek Your question has two parts. Lets address them separately.

    Scenario 1:
    Illustrating a song. Can you listen to a song (or read the lyrics) and then create an original illustration of those lyrics? Yes. No question. Full stop. The copyright to that new illustration would reside completely with you.

    Scenario 2:
    Illustrating a book using both your original illustrations AND the songs lyrics. No. Absolutely not. This is a copyright infringement. No question.

    Now given that scenario 2 is WITHOUT QUESTION a copyright infringement, you have to consider whether it is "actionable" or not. The evaluation of this is on a spectrum.

    What if you created the proposed book and it never left your studio?
    Still technically an infringement. But not an actionable one. The songwriter would probably never discover the infringement.

    What if you created the proposed book and you put it up as a downloadable PDF for free?
    Still an infringement. Sure, you are not generating income, BUT what if the songwriter was already in the process of having that song turned into a picture book? Now it's more of an "actionable" infringement. You will likely get a take down notice from the songwriter.

    What if you created the proposed book and started selling it for $17.99?
    Most certainly an actionable infringement. You will likely get a take down notice and request for compensation.

    You end your question by making a connection to this proposed book as "fan art". I confess I'm confused by this. If you can clarify your understanding of fan art we can continue to chat about this.

  • SVS Instructor Pro

    @burvantill I would point out that you are conflating two different aspects of copyright law in your answer. And I know that you are not an IP Attorney -- neither am I. But understanding the fundamentals of copyright is vital for anyone in the illustration profession. So I hope you will allow me to clarify.

    You write: "I would think if you don’t include the lyrics as text then it would be alright"
    I totally agree (see my earlier response to @Chip-Valecek ).

    But then you write: "It would become your version then, like will terry’s little’s. It’s just different enough."

    Can I assume this example came to mind because @Chip-Valecek referenced the concept of "fan art"?
    It's important to understand that Will's LITTLE'S is relying on a different aspect of copyright law. Fan art is fundamentally a copyright infringement. Will is using characters (intellectual property) owned by other people and companies and he is creating derivatives of those characters. He does not have a legal license with the IP owners to create those derivatives. Instead he defends his ability to create (and sell) those derivatives by claiming what is known as the "Fair Use Defense".

    Note: I am a huge fan of the Fair Use Defense. It is vial to commenting on our culture and as a journalistic and educational tool.

    So far Will has not had to argue the Fair Use Defense (in court or arbitration) because the original IP owners have seemingly determined that the fundamental infringement inherent in the LITTLE'S has not risen to the level of an "actionable" infringement.

  • SVS Team SVS OG

    @davidhohn Thanks for taking the time to explain. The song in question is Werewolves in London. My one son loves the song and every time I hear it, I can imagine each of the versus as an illustration. Think about it "I saw a werewolf with a Chinese menu in his hand
    Walking through the streets of SoHo in the rain". Anyway, my first thought is to add the lyrics as part of it, but it seems like doing them with out the lyrics is the way to go. Maybe not as fun, but maybe it would be.

    As far as my definition of fan art, I define it as some sort of art related piece that is based on something you are a fan of. So in this case, I am a fan of the song and if I do art for it, it would be fan art.

  • SVS Instructor Pro

    @chip-valecek That's a pretty reasonable definition! (Kind of walked right into that didn't I?)

    I should note that that's not quite the same definition used by the 3 Point Perspective podcast. In the podcast the guys are really talking about creating "derivatives" of other peoples intellectual property.

    By contrast, in this case, you are talking about creating completely new IP. To explain that further, it's important to understand that the copyright to a text and the copyright to the illustration(s) of that text are two separate things. You only have to look just inside a picture book to see an example of this. The text is copyright registered in the writers name while the images are copyright registered in the illustrators name.

    That is what makes these kinds of discussions so tricky but important. We can use the same words but mean very different concepts.

    And finally you could always get a license. Never hurts to see how much it might cost or what would be involved. I searched for "how to license Werewolves in London" and got this link:

  • SVS Team SVS OG

    @davidhohn awesome, I filled out the form. Lets see what they say. I will keep you all posted. I feel if I just did the illustrations it would be fun but not as much of an impact having the words with it. We will see where this goes.

  • SVS Instructor Pro

    @chip-valecek Excellent! Please keep us posted!

    Also I'll mention that I've recall the Fair Use Defense exercised in quoting a "limited" amount of text. You'd have to do some research into much or how little "limited" means. But it may be possible to to include at least some of the text without a license.

    This is the kind of question that an IP attorney is best suited to answer. You can contact a member of the Volunteer Lawyers and Accountants for the Arts. I've utilized IP attorneys the Oregon chapter on a number of occasions. In my experience asking a question like "How much of a text can I include without a license from the IP owner?" is no cost.

  • Last year, I licensed a greeting card with my art on it that had a partial song title hand-lettered on it. Before I even pitched it (2 years ago), I contacted the estate letting them know and showing them the art. Once I had a licensing agreement, I once again contacted the estate for permission. After many emails back and forth, I learned that song titles are not covered under copyright laws, but the lyrics are. I also learned that due diligence is rare, but appreciated by the songwriters and their estates. The greeting card will have their information as well as mine on the back, and I do not have to pay sub-royalties to their estate.

    Here's an article that explains why song titles are not covered (TLDR: they're typically short and unoriginal).

  • SVS Team SVS OG

    UPDATE - I filled out the form a few days ago and then found on the site @davidhohn sent there was an email I can reach out directly. So not being a pain, I sent a nice email just following up and describing what I would like to do with the song. I got a reply that they did see my form come across but they only handle the rights in New Zealand and Australia but they sent it over to the owners in the US. She also mentioned if I do not hear back by end of the week to let her know and she will follow up with them.

    So, I am just a little excited about it.

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