Fair use
katdad said:
Here's my own specific example, from my novel "Full Circle", Chapter 1. My protagonist is driving along a parkway:
=============
Steely Dan was on the classic rock station, playing Do It Again. I turned up the volume and helped Donald Fagen sing a few bars.
Then you love a little wild one
And she brings you only sorrow...
Go back, Jack, do it again,
Wheel turnin’ round and round...
==============
The lyrics set the mood of my novel. I could have paraphrased them but I chose to quote 2 lines from the song.
My agent has specifically told me that the quatrain I quoted in my book is okay, and that it constitutes "fair use". He said that such brief quotes are acceptable.
In the past, I've done similar things in both fiction and non-fiction (very brief attributions) and it's gone straight through into print.
That being said, an alternative is to use indirect quotes or paraphrase.
I don't know what your agent or publisher has told you. Perhaps your situation is different from mine. I have never heard of a publisher rejecting a manuscript out of hand for this.
Your agent is simply wrong on this issue. That isn't fair use, and I've seen writers successfully sued for using considerably less. FAir use with songs and poems is considerably different than fair use when quoting fiction or nonfiction. A song or a poem is so short that using any of it can get you in trouble.
And "Fair use" itself is greatly misunderstand. In truth, there is no provision in fair use law to use any copyrighted material in your fiction. None at all. FAir use law is very specific in where and how you can use copyrighted material, and using in your own fiction isn't one of the allowable categories. This is triply true for song lyrics and poetry.
Fair use law can be murky, especially when dealing with how much you can quote, but the courts have held fair use is allowable in the following categories:
“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
No mention whatsoever of allowing any use in fiction.
If you use any amount of copyrighted material in your own fiction, you'd better have permission. If you use a copyrighted song lyric or any part of a poem, you will need permission because fair use doesn't cover it. Courts have upheld numerous claims against using portions of song lyrics and poems.
If you want to use any portion of a song or a peom in your own fiction, you will need to get written permission, which can cost many thousands of dollars, and generally isn;t worth the effort for a new writer.