Can I use a poem as the lyrics for my song?

March 4, 2013

Dear Music Lawyer,

I found a poem online that I put to music. I want to record the song and put in on my next album, but I'm not sure if that's legal. Any insight?

—Raul

Dear Raul,

Poems are works capable of copyright protection. Thus, a poet could typically prohibit uses of the poem that implicate the exclusive rights held by the copyright holder (e.g., right to reproduce or distribute the poem).
More specifically, since you found an existing poem and are using that as the basis of a song, then you are preparing what's known as a derivative work. The right to prepare derivative works is one of the exclusive rights belonging to the copyright holder. Therefore, the first order of business is identifying the copyright holder of the poem and researching when the poem was created and/or published to determine if the poem is still under the term of copyright protection.

If the poem was written before 1923 (under U.S. copyright law), you should be safe to set the poem to music because the poem would be in the public domain. However, if the poem is still within the term of copyright protection, then you must contact the copyright holder to negotiate a license to use the poem as the basis for your musical composition.

Unfortunately, there are no standard licensing terms for these types of derivative uses, but I would anticipate the copyright holder of the poem requesting part ownership of the musical composition, some sort of upfront payment (e.g., advance against royalties), and/or a percentage of revenues on the backend.

Tip: When negotiating with someone who may share ownership of your musical work, you are wise to have a written agreement that specifies who controls/administers licensing and exploitation of the co-owned work. Ideally, in this type of situation, the musician would be able to control 100% of the exploitation rights in the musical compositions and any recordings thereof, subject only to accounting to the poem's owner for his/her share of royalties. Otherwise, the copyright holder of the poem may have the right to block certain uses of the song.

—Amy E. Mitchell