Grateful Dead lyrics cannot be quoted in children's book

Kembrew sez, "The blog Poetry & Popular Culture just covered a copyright conflict involving the Grateful Dead and J.T. Dutton's young adult novel 'Freaked,' which HarperTeen is publishing early next year. The novel is about a 15 year-old kid obsessed with the Grateful Dead."
In her original manuscript, Dutton had opened every chapter with a quotation from a Dead song, titling each chapter with the title of the song being quoted from. When it came time to publish, though, Ice 9 Publishing–which somehow owns the rights to all of the Dead's songs–wouldn't grant permission to Dutton to use all of the lyrics she wanted to use. Ultimately, Dutton was allowed to quote from 'Dire Wolf' and was given leave to use brief phrasings from the songs here and there within the text (as with 'She can dance a Cajun rhythm...' in the preceding passage).

So in short, because of the exigencies of copyright law and the concerns of Ice 9, the 'Freaked' that you'll see at the store is not the 'Freaked' that Dutton had in mind. But never fear! Yours truly has managed to acquire what is now believed to be the list of quotations Dutton wanted to use as chapter epigraphs in the original book but was not allowed to use in the final version. Here they are. And remember, you heard it first here:

If my words did glow with the gold of sunshine
And my tunes were played on the harp unstrung . . ."

J.T. Dutton's "Freaked" (Thanks, Kembrew!)


  1. …If the guy wants drug music to quote, I’m sure Brewer & Shipley wouldn’t mind if they were quoted instead.

  2. Why should Bob Weir have all the fun..?

    But on the other hand, it is a lot of heavy reliance on the Dead’s lyrics for an “original work.” I can see why Ice9 refused, simply based on taste (and I love the Dead.) Best to leave the lyrics in the songs and introduce them to your kids, if you so desire to indoctrinate them. I’m sure Robert Hunter (their main lyricist) would agree (if not his decision) that there are other stories yet to be told. Find a new vein of gold to mine.

  3. Quoting a song lyric at the head of every chapter is “heavy reliance?” Not in the books I read. It’s common as hell.

    Funny that a company that took its name from a Vonnegut quote (without permission, I’m sure) would be so stingy in letting a writer use these quotes.

    Of course, the quotes are almost certainly fair use (though Harper will still insist on permission in order to satisfy their insurer and corporate counsel)

  4. I fail to see how a book presumably about “a 15-year-old kid obsessed with the Grateful Dead” could be written WITHOUT quoting extensively from the Dead’s lyrics.

    I mean, the lyrics are a big part of the obsession, right?

    I’m gonna guess, too, that Robert Hunter had nothing to do with this inane decision, and it’s once again Bob Weir and Deborah Koons (Garcia’s widow) being complete fucking idiots, like when the soundboards were pulled from

  5. Good point, Cory. In the end I have to agree that it does seem pretty un-Grateful Dead of them to refuse homage. Maybe the author could get Tom Wolfe to intercede…

  6. I find these discussions about the injustice of copyright “interesting” to say the least.

    The simple fact of the matter is that J.T. Dutton doesn’t OWN the lyrics she’s quoting. The rights holder has the right to grant or refuse permission.

    It’s like someone presuming that they can borrow your lawn mower without asking. Annoying to say the least.

  7. What gets my goat is that it’s so self-defeating!

    I mean – aren’t the lawyers here, through their actions, just ruining something that would serve to publicise, and increase revenues from the sales of Grateful Dead recordings?

    I know who’s the parasite here, and it ain’t the writer of the book.

    @#7 posted by Steve Schnier

    OK – if artists are really so precious about their lyrics, maybe they should refrain from recording them or ever writing them down. How about just writing them on a single sheet of parchment and locking that up in a safe?

  8. Thank god no-one tried to do this to Doug Coupland’s “Girlfriend in a Coma”.

    And yes, it’s hypocrisy from a company that base their name on one of Vonnegut ideas!

  9. Once you’ve made your millions off of your Art and that art has become part of the common culture, then people should be able to freely quote from that art and even make some money doing so. Right? Personally, I’d be quite happy if someone used my song lyrics in a book. Chances are very good that many of the readers will have never heard these songs and may go out and listen to the music after reading the quotes. It sounds like great free advertising to me.

    Cory, is that better?

  10. In 1995 the Grateful Dead commissioned Plunderphonics composer John Oswald–one of the first artists to create complex, copyright-infringing mashups–to create the Grayfolded album from their collection of live recordings.

    One of Oswald’s quotes: “If creativity is a field, copyright is the fence.”

  11. Ice9 had every right to deny Dutton the use of the lyrics (or demand they be compensated).

    Fair use depends on two things: what percentage of the whole is the passage and does it convey the gist of a whole. So you could quote two sentences from a book without fear, but not if those two sentences relate, essentially, the whole thrust of the book.

    When it comes to poetry (the publication of which is largely driven by rights sale) and especially songs, one line is a substantial percentage of the whole. Indeed, Anne Tyler had to get permission to use one line from both the Dead’s “Golden Road” and “Truckin’,” as well as lyrics from several other songs, in her book “Breathing Lessons.”

  12. @ Padster123 — Just because you want or like something, doesn’t mean you can “take” it. Likewise, and artist/creator shouldn’t have to hide his/her work for fear that people will “liberate” it.

    This is still a free society (I think). Freedom means that an artist has the right to CHOOSE whether to grant free access to the work, or not.

    If you agree or disagree with that choice is immaterial. But the artist/creator has the right to choose.

  13. Ice 9 owns the rights. done.

    If you love the Dead then listen to their concerts and dance to their music.

    I know if I worked hard for 44 years making and promoting my music that I’d be annoyed if people wanted to use my work to make cash for themselves. as Phikus (#2) said “Find a new vein of gold to mine.”

  14. Steve Schnier (#7): Yes, quoting portions of someone’s lyrics is just like someone borrowing your lawnmower; after all, they might forget to return the lyrics, or break the lyrics and not pay to fix them, or use up all the gas in the lyrics’ tank.

    Perhaps it’s more like someone selling prints of a photo of the right front wheel of your lawnmower, instead.

  15. I think at that point, I’d have rewritten the entire book to be about some fictional band, or even better, some real band who didn’t mind using their lyrics, and getting the FREE PUBLICITY directly to an audience that typically spends A LOT OF MONEY on music.

  16. Just because you want or like something, doesn’t mean you can “take” it.

    Once again… That’s precisely what John Oswald did with Plunderphonics. And it’s Oswald’s Plunderphonics work which established his reputation as a sound collagist, which in turn prompted the Dead’s Phil Lesh to commission him.

    In other words, the band were perfectly happy with Oswald plundering the works of other artists for his own purposes.

  17. Actually, Bubbledragon, Dead albums very rarely sold well. They’d certainly be considered disappointing by industry standards. The Dead were ahead of their time in understanding that if they gave the music away via bootlegs, that is, if they used their music for its promotional value, not its monetary value, they could make even more money through ticket sales and merchandise, which they largely controlled. Any band today who wants to make it in the internet age would do well to study their business model.

  18. Although Ice9 dose control the rights to the lyrics…and inso doing, has every right to squash the use of them.

    It seems shortsighted to say the least to not allow the qoutes. We are talking about exposing an entire generation to the music, thoughts , and ideals of the Grateful Dead.

    I am interested in their reasoning, was it strictly monetary? “no cash, no qoute”…or did they have some concern about the ideals of the Dead being mis-represented? I can understand not wanting to allow their clients words to misused, but I feel it is most likely nickle and dime jerkwadness that led to this…funny because they will now miss out on possibly createing new listeners and new buyers.


  19. I think that fair use would allow for the quotation of the lyrics. However, because fair use is a doctrine with guidelines rather than laws, there is every chance that had they published it without permission they could have gotten into a costly lawsuit.

    A similar situation happened to Richard Cox who wrote an academic book criticizing another academic’s book. When it went to be published the publisher asked the other author’s publisher for permission to quote extensively from that book. That publisher said no. Cox ended up going to the author of the other book and got permission from him. “Unfair Use: Advice To Unwitting Authors.” Journal of Scholarly Publishing. Volume 34, Number 1 / October 2002 pages 31-42.

  20. If the edited text isn’t too close to pictures in the books, perhaps someone can make a PDF of printable stickers to cover the old text with the desired original new text?


  21. Geek fact of the day: Ice9 isn’t Vonnegut’s idea. Vonnegut attributes it to a guy named Irving Langmuir…a Nobel award winning scientist type. Langmuir had the enviable task of entertaining H G Wells when Wells visited the General Electric plant and came up with Ice9 as a sort of conversation piece.

    Wasn’t good enough for Wells, apparently…

  22. I’m only concerned with the idea of copyright being held by someone who isn’t related to the creator. Seems like it’s not something that should be sold to me.

    having said that, widows do count as related. and children.

  23. #16 Are you saying that if another artist, like Cory Doctorow, wanted to start each of his chapters of his new book with some of your lyrics, that you wouldn’t be happy? Who are you? Are you selling lots of music? The book would be a huge ad for you. You couldn’t afford that kind of ad space in a big publication. That amounts to thousands of pages of ads! How could you not want that? Besides, it would be an honor to have another artist use your music as their muse and make it part of their art. It’s all about money, isn’t it? What if the book was free and there was no money to be made?

  24. I’m gonna guess, too, that Robert Hunter had nothing to do with this inane decision, and it’s once again Bob Weir and Deborah Koons (Garcia’s widow) being complete fucking idiots

    Ice Nine is controlled entirely by Robert Hunter and administrator Alan Trist. Neither Koons nor Weir would be involved in this. It’s possible Alan consulted with Weir over the use of his songs, but I doubt Deborah was involved at all.

    I am not defending the decision. I haven’t seen the book.

  25. The concept to me lies in both common sense and Ayn Rand. Bear with me a moment. The two elements actually are how peaceful resolving could be considered. Or at least future disputes mitigated.
    By accepting that a creator has the historically established “moral rights” See Ayn Rand for some essays on the implications. Then the next player of course is an artistic vision affected by the music and lyrics present in their life.

    IF you have never been affected by music or lyrics you might be a Turing failure.

    That said to make the case for how deep cultural impacts-books and music and lyrics can become embedded in our souls. As possible explanation for an author feeling need to quote so deep an impact.

    Yet the creator/s of those lyrics have their own set of sensibilities. Which may or may not mesh with somneone else’s use of those lyrics.

    Common sense should respect the two parties having a right to not agree. Yet still seek to enrich all our lives by encouraging cross pollination.

    See Rush’s 2112 for a how it’s done in the other direction.

  26. Ice Nine might be controlled by Hunter and Trist, but something tells me the attorneys advising them on this decision were the same ones advising Weir and Koons, and if not, then there’s an evil spirit haunting members of the GDO, and Lesh is the only one with the good sense to have drawn a protective circle around himself.

    Perhaps one had to be immersed in the culture of the Grateful Dead, but the proliferation of lyrics on bumper stickers and t-shirts were part and parcel of the whole experience. I scarcely see how someone could write a book about the experience of being a Deadhead without quoting extensively from their lyrics.

    The bits of prose quoted in the link Cory provided, while a bit overwrought at times, did seem quite honorable to the spirit of the Dead, and written in a way to provide homage and respect to the lyrics, not steal them wholesale.

    I remember seeing “The Dead” in 2003 at Red Rocks, and all I could think of was, “The Dead Summer Tour 2003 — This Time, It’s For Money!” Outside of Phil Lesh, it appears that the rest of the band and members of the GD organization have transformed into the most blatant stereotype of hippy-turned-yuppie-and-getting-PAID one could possibly imagine.

    It’s not just revolting in the short term, it actually brings into question what I ever saw worthy about their “art” in the first place. To quote Johnny Rotten, “Ever feel like you’ve been cheated?” It seems punk was right about the hippies all along…

  27. So a band that encouraged people to bootleg their tunes doesn’t allow people to quote their words.

    To paraphrase something Ray Davies apparently said at his Hall of Fame induction: Rock and Roll has become mainstream. How bloody boring.

    Something else he’s supposed to have said, regarding people ripping off material: “I didn’t write ‘G’.”

    Every artist uses bits of others’ materials. It’s part of the paradox of our times that people draw lines about which bits you can own.

  28. I’m guessing that none of the copyright fellators in this thread have ever been to a Dead concert, because you clearly don’t get the irony of the situation. The Dead made all their money from hippies, by espousing hippified principles. Had they held their paying customers to the standard that their lawyers are trying to impose on this author, nobody would know who they are. I won’t even get into the issue of hyper-aggressive copyright pursuit from a band who should have spent ten thousand lifetimes in prison for drug related offenses if they were really all that in love with the letter of the law.

  29. “Its a lesson to me, the ablers and the beggars and the thieves
    The abcs we all think of, try to win a little love.

    I know the rent is in arrears, the dog has not been fed in years
    Its even worse than it appears, but its all right”

  30. TAK: I do believe you are showing a touch of grey…

    Someone has to say it: If Jerry were alive, I don’t think there’d be any issue. I know, too easy to speculate and proves nothing, but Jerry held it all together and kept it sane on so many levels. He was always extremely generous to the fans, and that was the guiding principle that kept their ship afloat for so many years: Keep giving and your cup shall ever be refilled. It’s sad to think those in charge of their legacy now are short-sightedly taking the common road (as opposed to the Golden Road of Unlimited Devotion.)

  31. there are two types of musicians… those who enjoy creating and playing music and if they happen to get rich and famous then fine… and there are those who’re simply in it to get rich and famous… Unfortunately, in this case, it looks like the rights holders now want to get rich off the work of the original composer who is now dead… this is the tragedy of copyright, it;s too darn long… and should not survive the death of the original composer unless he died before the copyright period expired… this would enable his heirs to make something from whatever he was doing before he passed away…

  32. Hi,
    I am the author of Freaked and here is my perspective on this story. I had no legal battles or even conflict with Ice 9. I contacted them for permissions and they offered me some, but not all of what I wanted. Usually money changes hands when writers ask for permissions. In my case, Ice 9 gave me the use of what lyrics I did use for free.

    Their hesitation about giving the full amount had to do with the feeling that allowing me to use too much would seem to be an endorsement of my work. Getting their endorsement would be huge–as one commenter put it, a money vein. Of course they have to be careful about what they lend. I wrote about the Dead because I happen to love their music, and using their lyrics was part of telling this story.

    J. T. Dutton

  33. Thanks JT!

    Doesn’t sound like you experienced any greed or hypocrisy. Too bad so many people here rushed to judgment.

  34. So what are they endorsing? They want to turn down a free promotion? Are they big endorsers of pot decriminalization? Do they endorse drug re-hab centers? So a writer wants to use this stuff in her modern book and they say no to some of it. That’s good that they don’t want to endorse reading. Vampires become like this, sucking off the last few drops of life even with the sun threatening to come over the horizon. They gave this music to their fans. If we want to have crazy characters do nothing but mutter GD lyrics, it’s open season. They wanted counter culture, well her it is. Get a publisher with a spine and have them go to court for you. There are battles to be won.

  35. I highly doubt one book not being able to quote GD lyrics is going to seriously hinder a new generation from EVER finding out about the band…

  36. I’ve got to say that my experience with Ice-9 was exactly the opposite. I edited “The Grateful Dead and Philosophy” and in that process, Alan Trist went out of his way to be incredibly helpful. I had issues with other copyright holders (quoting songs the Dead covered) and I went in as cynically as anyone figuring that was what I could expect from Ice-9. But my personal dealings with them — and everyone else who was in any way connected with the band and the organization — actually restored my faith in the movement. They were kind and helpful far beyond what some random philosophy prof who caught a bunch of shows would have any right to expect.

  37. How much permission do you think you’d get from say… Guns & Roses if you wanted to quote heavily from their lyrics and not paid them some exorbitant amount up front?

  38. To quote Jeff Tweedy:
    ” And if the whole world’s singing your songs
    And all of your paintings have been hung
    Just remember what was yours is everyone’s from now on”

  39. Jeff @ 41:

    Rather than that huge political minefield; perhaps they just thought it was a crappy book.

    Commercial endorsement isn’t just about views and stance, it’s also about association, quality and control of brand/trademark.

    JT, please excuse my innocent Devils Advocation. Of course, I haven’t read your book yet, and presume it to be fabulous !

  40. #2 Phikus & #7 Steve:

    What is it about Fair Use that is eluding the both of you?

    The book seems like it treats the Dead with much love and respect, you’d think they’d embrace the opportunity to introduce their IP to a new generation of customers.


  41. JBANG@48: I get fair use, but you can’t force someone to adopt it.

    As per the author’s post #38, It seems that Ice9 have been very generous under the circumstances. Would the same have been said if it were, say… G-n-R? (Ok, I know, nobody’d want to quote their lyrics as a main theme in a work of fiction, but, ya know, hypothetically?)

  42. I don’t mean to dominate the rap, Jack, and I don’t mean to flip flop, but I am still seeing both sides to this coin. If the author is OK with it, why shouldn’t we be, I guess, but TAKUAN’s comment inspired me to quote this piece of a great Dead song (probably violating copyright in the process.) It seems to me to be more relevant to another BB thread but could also easily apply here…

    “Who can deny? Who can deny?
    it’s not just a change in style
    One step done and another begun
    in I wonder how many miles?

    Spent a little time on the mountain
    Spent a little time on the hill
    Things went down we don’t understand
    but I think in time we will

    Now I don’t know but I been told
    in the heat of the sun a man died of cold
    Do we keep on coming or stand and wait
    with the sun so dark and the hour so late?

    You can’t overlook the lack Jack
    of any other highway to ride
    It’s got no signs or dividing lines
    and very few rules to guide

    Spent a little time on the mountain
    Spent a little time on the hill
    I saw things getting out of hand
    I guess they always will

    I don’t know but I been told
    if the horse don’t pull you got to carry the load
    I don’t know whose back’s that strong
    Maybe find out before too long

    -from New Speedway Boogie, originally written about Altamont. If Ice9 sues me, then I have been proven wrong.

  43. Cory (3), the same thing happened to George Alec Effinger. When Gravity Fails originally had quotations from Bob Dylan’s lyrics at the head of every chapter, and they had to be pulled.

    Wwinfrey @32: I don’t know about the lawyers, but we’re of one mind on the quotations. Deadheads move in a cloud of iconography and favorite quotes. You can’t represent that experience without the constant presence of bits of Grateful Dead lyrics.

    What also struck me was that the Dead’s lyrical corpus is full of bits of older songs. Hunter did mashups before they were invented.

    Life gets expensive when you get old. Maybe they need the money.

    Steve Schnier @7

    I find these discussions about the injustice of copyright “interesting” to say the least.

    No, you don’t. You’re using “interesting” as a way of suggesting that there’s something wrong with them, without actually putting yourself out to say what it is.

    The simple fact of the matter is that J.T. Dutton doesn’t OWN the lyrics she’s quoting. The rights holder has the right to grant or refuse permission.

    The simple fact of the matter is that you’re no expert on copyright law. Cory’s right. One quotation per chapter should fall within fair use. What this is about is the music industry’s habitual costiveness about rights.

    Jeff @11: I don’t know about Cory, but the point about art that has become part of the common culture is fine by me.

    Angry Young Man @14:

    Fair use depends on two things: what percentage of the whole is the passage and does it convey the gist of a whole. So you could quote two sentences from a book without fear, but not if those two sentences relate, essentially, the whole thrust of the book.

    No. You could still quote the two sentences from the book. Also, the idea of percentage breaks down when the fraction you might think appropriate is so short that it doesn’t constitute a grammatically comprehensible unit.

    Steve Schnier @15: I have to disagree. There is a common discourse in our culture. All artists draw on it. None of them, not even Saint Ayn (certainly not Saint Ayn), reinvent the whole thing from scratch. Their art becomes part of our experience. We talk about it, and represent it in our own art. That’s one of the things fair use is for.

    The Grateful Dead, in their own art, made plenty of use of earlier material. That’s normal. Artists always do that. The radical departure from normal is insisting that any recognizable fraction of any other work must be owned and charged for.

    By the way, could you please stop putting common words and terms into quotation marks? You’re misusing quotes for emphasis, rather than to denote a special meaning or usage, and the effect is like fingernails on a chalkboard.

    Bubbledragon @18, it’s a good idea, but in this case it wouldn’t work. No other band’s fans get into their music in that immersive way. At most, the reader would see through it, say “Oh, it’s supposed to be the Grateful Dead,” and then be irritated by all the quotations from some other band.

    Baldhead @26:

    I’m only concerned with the idea of copyright being held by someone who isn’t related to the creator.

    Blame Disney. They got the term of copyright extended because they didn’t want Mickey Mouse and Winnie the Pooh to fall into the public domain. The result is that copyrights wind up being owned by the children of the author’s second wife’s third husband.

    JTDutton @38, I have no idea what Ice9 can be thinking with this “endorsement” business. Readers would be mindful of your book, and of the Grateful Dead; but no quantity of quotes would make them mindful of a licensing authority.

    JBang @48, Phikus @49:

    I get fair use, but you can’t force someone to adopt it.

    You’re both a little off-track there. Fair use isn’t like Creative Commons. Fair use is part of standard copyright law. The music industry has been fighting a long underhanded battle against it. When they win, it’s not because they’re right; it’s because they’ll throw shipping containers full of lawyers at people who fight them.

    Takuan @50:

    Ice 9 was the death of the world by freezing.

    That’s perfect.

  44. Theresa

    The two-sentence example comes from the case involving Pres. Ford’s memoir, in which the Nation published the only reason anyone would buy such a thing: his two-sentence explanation for why Ford pardoned Nixon (basically, “We had to move on.”). Here’s a nice summary (link to full article below):

    President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained a copy of the Ford manuscript several weeks before Time’s publication of the article and published its own 2,250 word article that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued the Nation for copyright infringement.

    This case eventually wound up in the Supreme Court where the Court found in favor of Harper & Row and against the Nation’s argument of fair use. The Court’s analysis of the four factors was as follows:

    1. Purpose of Use – Although the Court agreed that news reporting was a favored purpose “the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weight against a finding of fair use.” The Court in determining this factor weighed against a finding of fair use emphasized the “Nation’s stated objective of scooping the forthcoming book and Time article.
    2. Nature of the Copyrighted Work – Despite the fact that the Court recognized a greater need to disseminate factual works than fictional works, the Court concluded, based upon the unpublished status of Ford’s memoirs and the fact that it was up to the author to control publication, that this factor weighed against a finding of fair use.
    3. Amount and Substantiality of the Portion Used – The amount of the Nation’s use of Ford’s memoirs was not very large; the District Court determined that only 300 words in the Nation’s article were copyright protected. However, the District Court concluded that these 300 words were “qualitatively substantial, constituting the “heart of the book.” The Supreme Court therefore determined that this factor weighed against a finding of fair use.
    4. Market Effect – The Court stated that the market effect “is undoubtedly the most important element of fair use.” In analyzing this factor the Court concluded that “[r]arely will a case of copyright infringement present such clear-cut evidence of damage”, and that any inquiry into this factor must take into account any damage to the original work as well as to any “harm to the market for derivative works.” Needless to say, the Court concluded that this factor weighed against a finding of fair use.

    In summary, the Supreme Court concluded that all four factors weighed against finding a fair use defense for the Nation’s publication of the article based on President Ford’s memoirs.

  45. Angry Young Man #53

    Thank you for posting real information (fair use is based on 4 factors, not 2), etc.

    I think it’s also useful to point out that in this case, permission was requested for a for-profit publication (a novel). The 4 recognized categories in which fair use without permission applies are scholarship (teaching and research), news reporting, criticism and commentary. Teen fiction published by Harper doesn’t qualify as any of those.

    I also think that it’s silly to “blame Disney” for getting the original term of copyright extended. It’s true that the extension will allow Disney and other multigloms, and copyright aggregators, to make more money and keep important pieces of popular culture out of the public domain for a longer time: 50 years to be exact. But really, so what? Are those entities really less moral than the people who want to turn a profit from the use of formerly copyrighted works, or people who just want to use them (not for profit but still without paying)?

    By the same token, why isn’t it OK for authors and other originators to be able to bequeath rights to their work to their descendants or whoever else they want? Why should the potential to make money from intellectual property be limited either to the creator or to an entity who’s purchased copyright from the creator?

  46. AYM @53, do you imagine I’m not familiar with that case?

    There are a couple of problems with your description of it. To begin with, Harper & Row v. Nation Enterprises was primarily about the doctrine of fair use as it applied to hitherto unpublished work. The Supreme Court explicitly said the unpublished status of Ford’s memoirs was a key consideration in their decision. The other key consideration they identified was the impact on the book’s market value.

    You can argue about whether or not it was a good decision. The overturned Appellate Court decision was more in line with established law and practice, and when it went to the Supreme Court, Time testified on behalf of The Nation, defending the principle that you can’t copyright news. However, it’s a lot harder to argue its applicability to much-published Grateful Dead lyrics.

    The rule as you formulated it was that quoting two sentences out of an entire book doesn’t qualify as fair use, if those sentences convey “the whole thrust of the book.” That argument’s a bit askew. First, it’s very nearly impossible to convey the entire gist of a book in two sentences. You might be able to describe it in two sentences, or characterize it; but that’s hardly the same thing.

    What you can do in a few sentences is give away information that damages the marketability of an as-yet-unpublished book. Let’s assume the unpublished book consists of one long continuous intricate puzzle that has a single answer, and that the publisher has been keeping the manuscript under lock and key. If the answer to the puzzle appears in the manuscript, and you somehow get hold of it and quote it verbatim before publication, that would be a violation of copyright under Harper & Row v. Nation Enterprises. (IAENAL, but if the answer didn’t appear in the ms., and you worked it out on your own and published it, that might IMO be tortious interference, but it wouldn’t be a violation of copyright.)

    Real-world version of the foregoing: it’s hard to quote a short passage from a long book and not fall within fair use.

    According to the Supreme Court, The Nation did manage to violate copyright by quoting 300 words from a full-length book. However, they didn’t convey the entire thrust of the book, and they sure didn’t do it in the specified two sentences. What Victor Navasky did was jump the gun and publish the only hot revelations in Gerald Ford’s memoirs, ruining the hoped-for scoop Time had counted on when they bought first serial rights to an excerpt from Harper & Row. The material Navasky directly quoted from the manuscript only totaled about 300 words, and was not a continuous block of text.

    The Nation article was nevertheless a blow to Time and Harper & Row, because Ford’s memoirs were only interesting for the light they shed on the events of the Nixon presidency and resignation. Otherwise, Gerald Ford was just an amiable guy who’d spent a quarter-century in the House of Representatives without writing a single piece of major legislation. He became Nixon’s VP after Spiro T. Agnew got busted. He and Nixon were never close, and he’d been VP for less than a year when Nixon resigned.

    Thus the Supreme Court’s ruling that those 300 words were “qualitively substantial” and the “heart of the book”: they were the only interesting bits in a work that hadn’t yet been published. The Supremes viewed that as a threat to the market value of the work.

    (It strikes me as a questionable decision. The principle that no one has a copyright on the news is one of the foundation stones of journalism and democracy. (Distinction: you can copyright the words in which the news is told. You can’t copyright the news itself.) Making an exception to fair use in the case of unpublished works undercuts that principle, since news is by its nature unlikely to have already been published. However, that’s a different subject.)

    So: Would the novel’s use of these quotations create a work that would supersede the original recordings? It would not. Does it add to or comment on the original? It does. Is the use intended to be commercial? Yes. Is there some unusual social value in the new work? Not for fair use purposes. It’s just a novel. Will it damage the market value of the recordings? It will not, and anyway the question is irrelevant, since the original works were published long ago. How substantial is the amount of material used? Not very. These are short quotes from full-length songs. Will it damage the market value of some other licensed use of the lyrics? No. First, no one who wants the lyrics to those songs would consider the quotations a reasonable substitute. Second, I really don’t think so.

    It looks like fair use to me.

    The biggest argument against using quoted lyrics in other works has nothing to do with the law per se; it’s that the music industry is overdefensive, and will take legal action against legitimate use. I’m not talking about Ice9; I’m talking about the music industry in general. Their collective rejection of fair use is a short-sighted, greedy, stupid policy. Usually they don’t make a penny off it, because the amounts they demand are so high that the authors just take the quotes out instead. All they really accomplish is to remove references to songwriters’ work from the great river of public discourse. We’re all the poorer for it.

  47. Floydboy @54, is this the first time you’ve participated in one of these discussions?

  48. Regarding the Ford memoir: fair use is “fact intensive,” as you’ve just demonstrated. The highly specific facts of each case mean that courts have to interpret them all and precedents are hard to apply speculatively to new cases. The Nation’s Ford memoir quotation was, the SCOTUS found, substitutive for the original. Do you think the same court would find that quoting a line from a song’s lyrics in a novel was substitutive for the recording?

  49. I’m sure these issues won’t go away anytime soon. It boils down to a very basic component to our psychology: the territorial circuit. Some artists are going to create work of art and they want you to look at it/listen to it, and love it and buy a copy of it, but it can’t ever become so imbedded in your consciousness that it becomes part of who you are. This is worse than a copyright issue, this is Mind taxation.

  50. Teresa, I wasn’t noting the case for you alone, and I wouldn’t presume to know what you might know in any case.

    I think you make a good argument as to why one line from a song lyrics is fair use, but I’m simply offering the guidelines that the publishing industry lawyers work under. And the Ford memoir is the exception to the rule about the what percentage of a work you can use is fair.

    To provide a counter argument: I think the longest Dead song, in terms of unique lines, is the “Lady with a Fan” section of “Terrapin Station,” which has 36, and to be on the safe side let’s add the four lines from the “At a Siding” section for a total of 40. Quoting one line from it would be to replicate 2.5% of the work. Scale that up to a 100,000 word book and you have 2500 words, which is a huge amount, a serial sale, really. What looks like an epigraph to most in isolation is actually a large part of the work.

    And seeing as Robert Hunter in particular seems to write each line of a song in total isolation from all the others, I’d argue that each line is a work unto itself, although that’s really an aesthetic distinction.

    Finally, I would say “the biggest argument against using quoted lyrics in other works” is actually the cost and huge amount of labor it takes to get the rights for the use. It’s just not worth it.

  51. so if Ice9 is Hunter’s company… has Hunter become a yuppie sell out too? or is he still on Phil’s side of the fence?

  52. AYM @59: IAENAL: I’m an editor, not a lawyer.

    Which part of your exposition are you identifying as the guidelines used by publishing industry lawyers? They’re no great respecters of fair use doctrine, and Harper & Row v. Nation Enterprises is going to have the same problem with applicability in most cases of alleged copyright infringement.

    As Cory points out, fair use is “fact intensive.” That’s the real lesson of Harper & Row v. Nation Enterprises: fair use isn’t a matter of strict wordcount or percentage. Since that goes both ways, I don’t see the point of your mathematical example. The percentage of Gerald Ford’s memoirs that was held to constitute copyright infringement was waaaaaaaay out on one end of the curve for how small a portion of a work can be held to qualify as infringing use: 300 words out of a 454-page 6×9 hardcover. [Approx. 0.002%.] That’s nothing you could use as a rule. In fact, if that percentage were applied to song lyrics, it would yield a result that not only falls well below a grammatically recognizable unit, but in most cases is less than a word. That’s an obviously nonsensical result, and our old friend the Reasonable Man would have no trouble recognizing it as such.

    The bit about Robert Hunter’s standalone lines does make me wonder whether you’re serious.

    There’s no great amount of labor involved in getting rights to lyrics by well-known artists, since their agents or other representatives aren’t hard to find. All you do is get in touch with them and say you want to buy one-time rights to quote some lyrics, and they name you a price that’s somewhere between the cost of a decent used car and the down payment on a house.

  53. @Cory – Do you think the same court would find that quoting a line from a song’s lyrics in a novel was substitutive for the recording?

    not the recording, the songbook.

  54. I just wanted to add that if it were my agent keeping other writers from using quotes from my work as epigraphs, I’d be ticked. Putting a quote in that position, at the start of a book or a chapter, is a way of saying that those words are important.

    Writers dearly love having their words treated as though they’re important.

    The purpose of copyrights and patents is to encourage individuals to create useful and valuable works. For poets and songwriters, the prospect of being quoted long after they’re dead, perhaps even becoming one of those standard quotes everyone knows, has far more to recommend it than high-priced obscurity, and an occasional payment accruing to some unknown heir.

  55. It’s a way of saying that those words are important, yes. It’s also a way of positioning those words so that they add value, credibility, relevance, and authenticity to someone else’s work. Hunter is not obligated to do any of those things, no matter who bitches and moans about fair use (especially when they’re ridiculously misinformed while they’re bitching and moaning).

    Neither Hunter nor Trist has ever stood in the way of Hunter’s Grateful Dead lyrics being disseminated–widely and for decades–by tapers and tape traders. They haven’t tried to get GD songs removed from You Tube. There’s still GD music for free download at There are still taper sections at every GD-related show, and his songs are still being covered–frequently–by GD cover bands as well as other bands (some in genres like bluegrass and reggae, which means transposed arrangements that set the lyrics off in completely different ways than than the original versions). Within the past few years there’ve even been an off-Broadway show featuring his lyrics, a quasi-symphonic treatment (without lyrics but with his titles), and the advent of a satellite radio station that’s all Grateful Dead all the time.

    So any snippiness about Hunter “not wanting” his work to be widely heard, widely known, etc., is bullshit. He wants those things to happen, and they are happening. What he didn’t want was for lines from his Grateful Dead lyrics to be copiously used to illustrate someone else’s fiction. He’s completely within his rights as a copyright holder to make that decision. I’d be willing to bet that Trist didn’t act as “agent” in this matter, nor was there a panel of money-grubbing lawyers behind the scenes.

    Moreoever, Hunter’s problem has never been that people don’t treat his words as being important. They are vitally important to tens of thousands of people, and he knows it. By his own admission, his concern has been that his words would be taken too seriously and used as the basis for a cult or religion.

  56. By his own admission, his concern has been that his words would be taken too seriously and used as the basis for a cult or religion.

    I agree, but that horse left the barn 30 years ago.

  57. Couple of comments from an “in me yoot” deadhead (ah, those Filmore East concerts… and the free concert at Tompkins Square Park… those were the days).

    First, there’s a dead song — at least one playing of it, I forget which song, and which album — in which JG suddenly picked out a few bars from Donovan’s “first there is a mountain” — as far as I know there was never any acknowledgment or attribution given.

    Second, I sometimes wonder if stuff like eipigrams should be treated the way music is handled WRT on-air stuff, i.e., no radio station has to ask permission to play a song. They just play it, and then payment is rendered via an organization that handles that sort of stuff.

    As I understand it the cost of one song played one time would not be all that much money, and if so, then using that as a model, I can’t really see how the cost of using a few epigrams and so forth to be much more than a token fee.

    I apologize for not registering to post this. I’m a bit “on in years” and disabled and not feeling real good at the moment (I hope to finish reading the posted comments but frankly don’t know if my body is gonna hold out long enough to do so tonight), and just wanted to share the couple of points above.

  58. Maybe I can lift your spirits a bit with a Fillmore East story?

    Shortly after opening the NYC venue, Bill Graham was on a radio show my friend hosted in SF. He was talking about the FE and the bookings, etc. and acting very upbeat, which for him was a hell of a stretch (he was a prick of the first order). After the show his lament began:

    “Those fucking New Yorkers—what a bunch of fucking animals! Shooting up in the shit-houses! Puking on the stairs! I put out a tub of apples, like I do here, and in five minutes they steal all the fucking apples and are selling them outside on the fucking sidewalk….”

    Yes, the good old days.

  59. This has been entertaining. The book in question has been bumped up my reading list a bit. Let me be quite frank in *MY* personal ethical position.

    If it’s thinkable to be an issue- I try to attribute whatever I quote. To a common sense level. Applying it used to be a simpler formality. From a seemingly vanished time. We formerly held proper attribution as a separable from all other considerations. Lawyers etc were bad karma for all. So long as you are in good faith so to speak, we used to NOT think a line or so was ethically an issue IF we properly attributed it.

    Thus- it’s not supposed to be any ethical wrangle saying “The music of ***” was of influence. It actually behooves me to consider if I am slighting for example- Dar Williams- By not mentioning that her music is playing while I am typing this post!

    Were I to try using more than a line or so of her song/s in this post? Then we might be on different ground. Same with the book. ONE quoting is of mere passing notice. One per chapter? That even to my relaxed take is what made it an issue at all.

    And my self referential example IS the literal soul to me of these cases! I could rant at immense length on the concept. I will use an example to do so in a shorter form. So it goes to:

    An author has rights to their creations. Which we however you word it- need to balance respect for with being sane. Yes- there was a case of an Ayn Rand inspired clause on someone’s lectures- that you agreed to NOT REPEAT ANYTHING you heard at it.

    And I must state that the lecturer has such a right and arguable grounds to seek redress from violators. Which is still to me -cringe makingly lacking in clue to do so. As if they cut off “mouth to ear” recommends? ah, maybe we know why that lecturer is unknown to most folks eh? SO even if I wanted to tell you about them- I cannot!

    Thats’ sort of creepier than mere “You Cannot Quote!”

    To me it was cosmically amusing compared to Saint Garcia in days past telling us to cue up a new tape as this was the first time for a song!

    I can only hope that in a better forum Jerry gets to enlighten that “MY WORDS ARE ONLY FOR EARS PAYING ME” lecturer. As Saint Garcia is the ultimate antimatter to that sort of greed.

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