We speak loosely of certain things that seem sufficiently common to us all. But we also speak pretty loosely of “us all.” Does it have specific criteria for membership? Are there by-laws? Can you be thrown out of the club for violating them?
Yes, I’m being slightly silly here, but I do have a point.
Not long ago, I ran across a rant by an entertainment lawyer to the effect that most of us who write fiction could be sued for zillions for the copyright violations we commit in our stories. Even quoting a few lines from a pop song, he wrote, exposes the writer to legal hazard. Lawsuits have been filed over such things, yes – but how often does the plaintiff win, and on what grounds? How often are such suits dismissed by the court, and on what grounds do the dismissals rest?
In looking into such things, the inquirer will find a particular phrase prominent: “The common cultural heritage of Mankind.” Certain artistic treasures are regarded as being part of that heritage. Therefore, quoting them or referring to them is regarded as legally protected. Their originator is regarded as having lost copyright protection, often by having had the grace to die long ago.
But admission to “the common cultural heritage of Mankind” is a rather informal process. It’s a prestigious thing, something to which many an artist would aspire. However, there are no strict criteria, other than some legislated magic numbers that are also legislatively alterable.
I’ve occasionally “taken liberties” with a song lyric. I did so in this novel, and have done so occasionally in my pieces here. Perhaps I was legally assailable for it, but no lawsuits have followed. Many other writers have done the same. Yet those song lyrics are supposedly copyright-protected.
Will those lyrics and others like them ever pass into “the common cultural heritage of Mankind?” It’s not possible to know. Some will be forgotten entirely, which would render the question moot. Others, possibly including some that are current as I write this, will be celebrated for decades to come. Yet at some point their legal protections will lapse. Will they then be deemed to be part of that cultural heritage?
It’s a loose category, and fairly recent at that. I rather doubt that Ludwig van Beethoven bothered to ask Johann Friedrich von Schiller for permission to use the latter’s “Ode to Joy” in the final movement of the former’s Ninth Symphony. I could be wrong, of course.
At this time, American copyright protection for written material extends throughout the life of the writer plus seventy years. (However, several contemporary writers have placed some of their novels outside copyright, as is their right.) After that, the work passes into the “public domain” – which is not the same as “the common cultural heritage of Mankind.” That more august category omits much that’s deemed unworthy to be so designated, and includes many works that were never deemed legally protected.
We’re not done here. There are “fair use” provisions in the law, which permit modest quotes in reviews and other commentary. Other nations have other laws. Figuring out which laws apply to which writers and which of their works can cause headaches. And of course, some of those other nations have no standing to sue in an American jurisdiction. Often no such suit is ever contemplated, as the possible return is less than the cost of the plane ticket.
In general, it’s courteous and good practice to ask a writer for permission to include a bit of his stuff in yours. However, I draw the line at song lyrics that pop into my head spontaneously. I deem them to be part of my “cultural heritage.” I’ll use them any way I damned well please, as compensation for their presumption in appropriating space in my brain.