Where Do You Get a Poetic License to Infringe Copyright?
Cathy Wittmeyer | February 2022
Cathy Wittmeyer
Poetic license is defined by Webster’s Unabridged Dictionary as, “license, or liberty, taken by a poet, prose writer, or other artist in deviating from rule, conventional form, logic, or fact, in order to produce a desired effect.” The deviated rule this essay investigates is copyright infringement in derivative works. The question was raised by a poet in a Tweet, “Is it okay to use song lyrics in a poem?” and I patiently watched poets comment with all sorts of justifications that were less than legally precise. I propose that it can be perfectly fine to borrow music lyrics for a poem, or a line from another poem without permission. It can also be wrong to do so and poses risks poets and publishers may not want to undertake.
The Copyright Act of 1976 gets its power from the First Amendment, and its intent is to encourage the building upon the ideas of others and the free exchange of ideas by creating incentive to share. It is the expression, not the idea, of the originator that is protected. According to the United States Copyright Office (Circular 14), the owner of a copyright is the only one who has the right to adapt their work or authorize someone else to, but some fair use exceptions do exist. Fair use is a defense against a charge of copyright infringement. There is no reason for a poet to use the fair use defense unless they are being sued. Poets might simply ask what the risk of being sued is before they borrow lines and make their choices based on their level of risk aversion.
The Copyright Act of 1976 gets its power from the First Amendment, and its intent is to encourage the building upon the ideas of others and the free exchange of ideas by creating incentive to share.
As with all legal exceptions, there is a legal test, a set of questions one must ask to determine whether using someone else’s line of lyric is fair use without permission. These have been developed over decades of cases, and a defendent needs to take steps to prove the use was fair: the nature of the work, the significance of the copied content, and the potential impact to the copyright owner’s income and reputation.
A poet who claims poetic license to use someone else’s line or lines without permission, must meet this very subjective test if they are sued for using the material without permission. A poet cannot simply say they meet the test to avoid a legal challenge so must take the first step and consider the nature of the derivative work: is it newsworthy, parody or comedy, and therefore, transformative art? If it is a poem, it is probably art, and not reportage or parody. If, however, it is paying homage to a great poet and also creating something new in tribute, we could have a case for fair use in the first step, and could then move on to the second and third steps.
Take for example, a poem with the title, “Wind” that has the epigraph, after Bob Dylan, and each line is a lyric from different Dylan songs arranged in a cento. This cento is a new transformative piece of work, follows a known formula that took skill and labor on the part of the poet, and gives credit to the original copyright owner. It might pass the first step.
Second, look at the significance of the copied content in the derivative work. It has to be enough that the original copyrighted material is still recognizable within it. If a line of music is placed within a poem such that the average reader doesn’t recognize the original song, then maybe it is not enough of a borrowing to bother with. For example, a line that uses the words, “like a rolling stone,” might not be recognizable as Bob Dylan’s without any other context or borrowed lyrics. Pair that with more Dylan in, “the answer is blowing in the wind like a rolling stone,” and a problem arises. The cento example in Step 1 might easily have failed this test if only because it relies on the recognition of Bob Dylan’s lyrics to make its effect.
…poets cannot rely on the assumption that because poetry doesn’t pay financially, it is always fair use to quote another poet, writer, or musician whose copyright has not passed into the public domain without getting the originator’s blessing.
And now, the third test asks what would be the impact of a poem using a line from a Dylan song printed in a poetry journal on the income or reputation of Bob Dylan. This test is only relevant if the poet’s fair use was taken in the entirety of all the steps. Dylan just sold his entire songwriting catalog to Universal for more than 300 million dollars. The financial/reputational impact of a single poem on a giant record label would be even more questionable than its potential to harm Bob Dylan’s reputation or the market for his work. I question, honestly, who would sue a poet for damages even if harm could be established.
While it wouldn’t seem worth the effort to sue a poet, I will add a fourth question for the simple poet contemplating great things for their poetry: what are their intentions for one day publishing this work? When a small journal obtains initial copyright to their single poem, they may not see any backlash from the original copyright owner, whom they borrow from. However, if their poem becomes part of a book manuscript, the publishing house is a bigger target for a copyright infringement lawsuit, and they might shy away from the controversy no matter how fair the poet’s use of the material is. It is the subjectivity of judge and/or jury that makes publishers skeptical about derivative works without permission.
On the one hand, poets cannot rely on the assumption that because poetry doesn’t pay financially, it is always fair use to quote another poet, writer, or musician whose copyright has not passed into the public domain without getting the originator’s blessing. On the other hand, poets must, in their creative process, trust that their transformation of another artist’s work has been stamped with their own originality. If poets pay tribute to those from whom they borrow for the sole purpose of creating new art, they can feel safe that their derivative works are fair use. Sadly, poets who want to be published are subject to the willingness of the publisher to defend a copyright infringement lawsuit. Robert Zimmerman is well known to have “borrowed”—though “geniuses steal”—from folk songs, musicals, and movies in both his music and lyrics (even taking his last name from Dylan Thomas). This is a poetic license all artists rely on—publishers be damned.
Cathy Wittmeye earned her JD from the University of Pittsburgh School of Law and her MFA in Poetry from Carlow University. She is a member of the Pennsylvania Bar Association since 2005. cathywittmeyer.com
