Foot Notes : Is Symphonic Literature Copyright Infringement?

Symphonic literature would not exist if not for the copyrighted material it is based on. With conceptual framework sprouted from established intellectual property, practicing the style is, in some ways, exercising squatter’s rights. I do not pay to name my stories after songs, I do not have the license to the lyrics I chop into poetry, though, even if I could afford either one of those things, I wouldn’t see the need. This is entirely legal. Fair use as defined by US copyright law is determined by 4 factors: purpose/character of the use, nature of copyrighted work, amount of copyrighted work used in relation to copyrighted work as a whole, and finally, the effect of the use on the potential market value/profit of copyrighted work. Using the aforementioned tenets, this essay will serve as a step-by-step guide to how symphonic literature can fairly be referred to as fair use.

So far as purpose is concerned, symphonic literature is written as an expressive art form. It is an attempt to add metatextuality, the type of medium-mix-up found in modern culture, to a base of creative writing. EDM creators, chefs of the zeitgeist, mince and chop all of pop culture to flavor their songs, video commentators react to copyrighted content on their streams; both of these benchmarks of fair use exist far past anything symphonic literature does. For symphonic lit would still exist if stripped of its metatextuality – yes, it would be missing something, but not as much as a 10-minute video of somebody watching and talking about something stripped of that something, or a mash-up gutted of one of the few songs that make it so. The form is literature first, source material second; even in the poetry made from song lyrics, stripped of reference, the text would still exist in the order the writer chose, so it would still be a poem, just a less meaningful one. The music, the copyrighted material, is used as a vehicle for personal expression, and if there were desire to do so, could be swapped out as inspiration with another medium. Of course, then, the form would be entirely different, rendering this particular line of reasoning void. It isn’t, though, and so this remains valid.

The character aspect of the first tenet requires fair use of copyrighted material to be transformative. To add something new to what already exists. Symphonic stories cover this base with synthesis, of taking in one medium, music, interpreting the essence, then harnessing that energy to create a work of writing. Transforming feeling into story is not a copy-and-paste process, as each song is a unique body requiring a specially tailored outfit of words to fit. This may sound ‘extra’, and it is exactly that. Not necessary, nor automatic, the creation of symphonic stories requires a conscious, transformative effort on the part of the writer for it to happen at all. The transformative spirit is a necessary catalyst for the process, and if anyone was interested enough to try their take on songs I’ve made into symphonic stories, the results would be distinct from one another, mirroring our differences as individuals. Also relevant here is that symphonic stories are not made from the stories in songs; repeating narrative beats sans beat would be an example of the infringement I’m arguing against. Symphonic stories have narratives that are inspired by, but could conceivably come to existence without, the source material.

Symphonic poetry is similarly transformative. The main purpose of scrapbooking song lyrics together is to create a thematic shift between the sets of stories whilst reinforcing the musical nature of the form. Here, the use of copyrighted material is more apparent; the lyrics are taken more or less verbatim to communicate certain concepts and tonalities. However, accuracy to source material purpose holds a lower level of importance than artistic intent. Anything that needs to be changed for the poem to make sense (pronouns, single words), has been changed before, and will be changed again; the source song gets credited all the same, not so much because I’m taking the words, but because what is being alluded to is the energy their song has attached to them, or more accurately, my interpretation of that energy. That, done a few times over, forms an entirely new poem, no different than a poem written normally, as in, one that doesn’t invent its own words. The reason for referencing the source songs at all is so the reader can go listen for themselves, seeing firsthand what energy the writer interpreted while also having a chance to form their own opinion. This additional level of depth, present in both aspects of symphonic literature, enriches the source material so long as someone gives it the chance to do so.

In regard to the second tenet, all copyrighted material used is public rather than private, making fair use of it all the more plausible. However, considering the ever-increasing intensity of music’s presence in not only American but worldwide culture, would it not be prudent to use a stronger word than ‘public’?  If life is a city, music is not the singer in a public park waiting to be experienced on a temperate afternoon. Some time ago that was true, when music was relegated to venues, but now it is everywhere, inescapable, more like the clamor of traffic albeit situationally more pleasant. Commercials, T.V. shows, Tiktoks, Youtube videos, movies, nights out, sporting events, religious rituals – these are just some of the many incidental contacts someone can have with music. It is so intertwined in the worldwide culture that using it as creative source material is as natural to me as is using my life; as a matter of fact, I do both at the same time. Symphonic lit can be partly attributed to music’s universal (more suitable word than public) state of existence.

Concerning the amount of copyrighted material used, the creation of symphonic lit necessitates consuming a disproportionate amount of music in relation to what is actually ‘used’ in the end. The stories utilize song titles as metatextual direction, to point the reader to what the author feels is an audio representation of the story. And the moment that happens the reader creates their own opinions which interact with the writer’s, adding that aforementioned layer of transformative depth that is an innate part of the form. Without the reference aspect of symphonic lit this would be fine, just a coincidental lining up of words. The stories can also use aspects of the songs, but it bears repeating here, that if a story repeats story beats found in a song, it is not transformative, and therefore not symphonic in nature. The poems, as mentioned previously, are given additional context by their position in collections of symphonic lit. They operate fine on their own, and again, without the reference (transformative) aspect of symphonic lit they would not be questioned as copyright infringement. However, taking an entire block of lyrics would be an indisputable case of thievery, as would be using a majority of another artist’s/band’s work to communicate one’s own message. The key to this third factor is to not take too much, and symphonic lit avoids that as a whole with an overarching ‘rule of two’. Never more than two uses of a singular artist’s/band’s work in a collection of symphonic lit, taking into account the stories as well as the poems, which have an additional, two-line per song restriction themselves. This ‘rule of two’ is comparable to instances of fair use like a character poorly singing a song in a sitcom, or a normal story quoting a song’s lyrics at some point, while also ensuring the new work to be sufficiently different from that which it is amalgamated from. Symphonic lit is an intentional effort to make literature from bits and pieces of music; if it used too much it couldn’t be what it is.

The fourth, and final, factor of fair use is the effect of the use on the potential market/value of the original. And while it is true that every song used is available for licensing, it is equally true that I am not able to afford said licensing. Anyone who doesn’t have everything would be hard-pressed to solely finance a project of symphonic magnitude. Unless, of course, the style doesn’t need licensing, and I don’t think it does.  Symphonic doesn’t offer copies of music, it is artistic commentary. If anything, the referential nature of the style is a boon, the metatextual suggestion to the reader to experience the music for themselves brings them straight to channels of content already monetized by the copyright holders. This can bring back old fans to songs as well as introduce those who, due to their own musical tastes, would have been unlikely to encounter the artist otherwise. Furthermore, the true purpose of the fourth factor is to fight those that would make bootleg content, knockoff designer and almost accurate sports jerseys, or an attempt to steal content to profit before the copyright holder, like someone recording in a movie theater. Symphonic does not claim to be a replacement for any of the music that inspires it; it is a celebratory recommendation of beauty that is intended to make people go experience it for themselves. Additionally, all collections of symphonic lit are released for free. The print editions have associated costs, but similar to music, the collections are available to be experienced for free, digitally. The form, at worst, exists parallel to the source material’s revenue streams, and at best, directly supports them; symphonic is the opposite of that which violates the fourth factor of fair use.

I’m no judge. I’m aware my say on this matter isn’t definitive, but I believe I’ve constructed symphonic lit to be within all four boundaries of fair use, and provided evidence to support that claim. Symphonic literature is not an attempt to steal whatever may be coming music’s way; it is a fusion that is only possible today, and the metatextuality it uses is a legitimate direction for literature to evolve as an art form.

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