Question and Answer #2: New Lyrics for Copyrighted Songs
by John Aquino on 04/19/12
Q: I’ve written new lyrics for popular, copyrighted songs that I’d like to publish in a book. The book is primarily intended for use in classes and recreational events but could have other markets too. It will be published by a commercial book publisher. What I plan to do is to write next to each song , “Sing to the tune of xxx.” I’m not copying the copyrighted music or lyrics, so that’s all right, isn’t it?
A: Even though the book is primarily designed for some educational purposes, that doesn’t automatically make any use permissible. And the fact that the new lyrics will be published in a book that will be sold makes the use arguably commercial.
If the composer or lyricist of a copyrighted song came to me complaining about the practice of writing, “Sing to the tune of xxx” and printing new lyrics to their songs, I would say the following. They may or may not be winning arguments, but they are reasonable ones.
First, the use might be construed as a direct copyright infringement under the following argument. One of the rights of copyright holders is the right to make derivative works of the original works—plays and films from novels, etc. A derivative work from a copyrighted song would be new lyrics to the song. Under the 1976 Copyright Act, the composer and lyricist are joint copyright holders of the entire song. Therefore, either or both of them could arguably sue for copyright violation because the book author created a derivative work without permission by writing new lyrics to sing to the copyrighted music.
Second, if the publication of the new lyrics led to public performances of the music without permission—because the reader of the book was instructed to sing the lyrics to the composer’s tune--the composer and lyricist, jointly or individually, could sue each performer for direct copyright infringement—a difficult task to find them and bring them to court--and the publisher and author—easier-- for contributory infringement. The argument would be that the author and publisher were setting up the situation for infringement. They instructed the reader to sing the song to the copyrighted tune. They could conceivably mitigate against this by including in the instructions—“You must receive permission of the copyright holder to publicly perform the music for this song.” Even if this is done to protect against unauthorized performance of the song, the direct infringement argument might still be valid. Consequently, it would be wise to contact some of the copyright holders and inform them exactly of what you are doing to see what reaction you get.
Some of these things are like buying insurance. You can gamble and do without it. But you can’t buy it when you’re dead. And you can’t undo what you’ve published when someone files a complaint for infringement.
Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.v
