Singing Along to Audiobooks

Dear Rich: I am an audiobook producer and I've had several instances lately (and it's a longstanding tradition with audiobooks) where a brief excerpt of song lyrics is quoted in a book, and the reader is asked to scrupulously avoid singing the lyrics, or at least to ad-lib some unreal melody. Usually the ad-lib melody is hideous, especially since the song is so familiar to everybody who hears the book. In one case, a mega-famous writer had to remove lyric snippets he quoted from some old blues songs because he couldn't get explicit written permission to use them. Now, as I understand it, that's a much higher standard than the actual law. According to other producers I've worked with whose audiobooks do use the original melody breifly, fair use makes it okay. One producer told me that there was no justification for avoiding using the melody. So, I'd like to know - who's right? Claiming fair use may succeed, but as you probably know, audiobook publishers need an assurance that they will stay out of court, not simply an assurance that they will succeed if sued. That's a tricky proposition when it comes to music publishers (not known for being litigation-shy). What's needed is a legal precedent that specifically deals with this issue. For example, it would have been great if that mega-famous writer went ahead with the use regardless of the permission requirements. 

Why Fair Use May Work

This recent case demonstrates why fair use claims may succeed ... and goes further than the activities in your question. In this case, an actual snippet of the song (an alleged infringement of the song copyright and the sound recording copyright) was used without permission of the Lennon estate. Of course, past performance is no indication of future results and the fair use argument will be weaker, the more of the song that is used. One or two lines is probably okay but use of a complete verse and chorus, or repetitious use of a song's lyrical hook, or a narrative built around the song lyrics (for example, a mystery based on Yellow Submarine) are less likely to succeed. The outcome will also be affected by the context in which the lyric is placed and most importantly, the transformative nature of the use. 

Singing a Different Tune

As for singing a different melody, it's not clear how that limits the producer's liability. It might even make matters worse and tick off the copyright owner, unhappy to see the work mangled and unwilling to permit creation of a derivative work. Also, we have not addressed issues that might arise when there's a written agreement permitting the lyrics in the print book but not addressing the use on audio.

Hey ... We've Produced a Few Audiobooks, too

The Dear Rich staff takes special interest in audiobooks. (Warning! Tireless self-promotion coming up!) Besides Nolo's podcast series we've produced some exciting audiobooks on legal and non-legal subjects, and we host an informative Elmore Leonard audiobook podcast series. BTW, is anybody interested in acquiring the world's most extensive Elmore Leonard audiobook collection (described in this article)? We love talking about audiobooks. Hey why don't we make this Audiobook Week at the Dear Rich Blog? DONE!