How do I legally use someone else's words as the basis for my song?

August 14, 2012

Dear Music Lawyer,

I wrote a song (lyrics and music) based on a prayer an acquaintance sent to me. I recorded the song with my voice and guitar and registered a copyright in the song. I just learned that this person used the same prayer with similar words and a different melody and said she cannot copyright her song because I already hold a copyright.

Can she register the copyright for her version? Do I need to change the copyright registration of my version? Please help clarify this so she can copyright her song. Neither of us wants any recognition or money from the other, but we want to make sure this is properly conveyed.

—Geri

Dear Geri,

When a work (such as a song) is created based on an existing work (such as a prayer or poem), the resulting "new" version is known in U.S. copyright law as a derivative work. A derivative work may be registered with the U.S. Copyright Office provided that it contains an original work of authorship. In other words, there must be something "new" that itself is capable of copyright protection and not merely a minor modification of the existing work.

Also bear in mind that the copyright in a derivative work only protects the "new" material and does not extend protection to the existing work on which the derivative work was based.

The mechanics of legally preparing and protecting derivative works can be a little tricky. First, recall that a copyright owner has the exclusive right to prepare derivative works. Therefore, if the existing work is not in the public domain (i.e., the work is still within the term of copyright protection), then the person who wants to prepare the derivative work must obtain permission from the copyright owner to do so.

TIP: To avoid disputes later, I recommend that such consent be given in writing and include details as to what you can do with the derivative work you create. For example, are you free to sell and/or license your song to others? Do you have to pay any money back to the author of the underlying prayer (e.g., royalty)?

Then, the author of the new version can seek copyright protection in the additions, changes, or new material appearing in his/her version of the work. When preparing the copyright application, the author of the new version should specifically exclude any preexisting material.

TIP: Several examples of how to describe excluded and new material can be found in the Copyright Office's Circular 14.

With that in mind, it sounds like you and your acquaintance each created a derivative work based on the same preexisting prayer. If that prayer was in the public domain, then you were both free to create and register your own songs (excluding any copyright claim to the preexisting prayer). However, if the prayer was not in the public domain, each of you would have needed to first obtain consent from the copyright owner of the prayer to create your songs. Once such consent was granted, you would have each been free to register your individual songs with the Copyright Office (again, provided that you excluded any claim of ownership/authorship in the preexisting prayer).

If you registered the copyright in your song without excluding the preexisting material, then you may wish to correct the public record by amending your previous copyright registration using a Form CA. The Copyright Office's application processing procedures are highly unlikely to pick up on any errors of this nature.

If the prayer was not in the public domain and you failed to seek consent from the copyright owner of the prayer, then you would be wise to stop exploiting your song (if you are) and contact the owner of the prayer for permission.

—Amy E. Mitchell