The epigraph. It’s fun, it’s great… It’s the wordsmith’s illustration. To put a quote before your text (that’s what an epigraph is) is to establish authority before you even start writing. It can help to set a mood, to celebrate your favorite author… And it can get you into some serious legal trouble!
Yes, let me repeat that: an epigraph can get you into legal trouble!
Are you as baffled as my clients are whenever I warn them about this while editing their texts? Well, read on.
All about fair use
In essence, an epigraph is any quote you put before your actual text. Now, you might or might not be familiar with the “fair use” or “fair dealing” rules that exist in most countries. It basically says that you can use a quote, which is someone’s intellectual property, without asking the copyright holder for permission. And you’d think that that would be applicable to all texts and quotes, right? Wrong.
Conditions
However, what most people don’t know is that there are certain conditions under which the fair use rules apply. There are some wildly varying differences between countries (or even states). But the general rule of thumb is that you’re safe as long as you quote fewer than 300 words from any given text; don’t use a quote that can be considered the essence of the work; and engage critically with the quote used. In these cases, the law-makers think, the costs outweigh the benefits: you allow people to build onto existing knowledge, even though they might make a bit of money off someone else’s work.
So far, so good, right?
The problem is that there are certain types of text which, people have decided, are automatically disqualified through the conditions above.
Exceptions to fair use
Poetry, for example, is tricky. The thing about poetry is that it’s usually short. And that means that you cannot keep the 300-word limit in mind: in most cases that’s the entire poem! What’s more, a big part of poetry is composition, which means that if you take an exerpt from a poem, there s a risk of misrepresenting the work’s intent. And printing an entire poem, of course, is usually out of the question. Still, for specific purposes you can quote one or more lines of poetry.
Songs are dangerous. Not only are there the same concerns as we discussed with poetry above, the copyright is often owned by big, rich corporations who can absolutely afford to sue and go through a very lengthy legal battle. (Sony’s notorious for it.)
And then, you guessed it, there’s the epigraph.
The trouble with an epigraph
“Okay, fine”, I hear you think, “I will simply not use a poem or song as an epigraph!” And yes, that’s a good start.
But here’s the thing. Remember how I said that one of the conditions for fair use is that you don’t use a quote that’s the essence of the work? Well, it’s generally accepted that if you use a quote by someone else as your epigraph, you consider that quote to be the essence of the work. So you’d be guilty by your own admission!
And then there’s the “engagement” aspect. The thing with epigraphs is that they are often used as illustration, not as a part of the text. If you don’t engage with your epigraph, if you don’t take it apart and interpret it in the body of your text, then, again, you’ll have broken one of the conditions.
Is your head aching yet? Well, here’s what you can do.
Avoiding the risks
Yes, there are ways in which you can eliminate the risks.
1. Public domain
First, check whether your quote is in the public domain. Though nearly all intellectual effort is protected, copyrights expire. If you want to quote a 200-year-old nursery rhyme, you’re probably good. Then again, a “reprint” can renew the copyright: a Bible, for example, is almost always protected by copyright, even though the original text was written a long time ago.
2. Do a priority check
If it’s protected by copyright, take the second step (and you’ll hate me for this): ask yourself whether you REALLY need an epigraph. 95% of the time, the epigraph is fun and illustrative (like a doodle), but eliminating it will do nothing to change your text. Trust me, the third option is even more painful. So really be sure you need to keep it before you even consider the next one.
3. Get permission
Third: track down the copyright holder and ask them for permission. Sounds simple, doesn’t it? You send an e-mail to your favorite author and they feel so flattered by your request that they say yes immediately! The problem is, the author is usually not the copyright holder.
Requesting permissions
If the author doesn’t own the copyright, then who should you deal with?
- Most publishing contracts transfer the copyright from author to publisher. A publisher is a business and wants to make money. And that means that they might charge you a serious fee just to use the quote.
- When an author has passed with the copyright still in their possession, it is often owned by their estate. The estate wants to make money. And so they might charge you a serious fee.
- Both estates and living authors are often represented by an agent, who needs to be contacted for permission to use the epigraph. It’s an agent’s job to make their client money… Can you guess what comes next?
More headaches…
Also, the parties mentioned above have absolutely no incentive to get back to you immediately: the permissions process can not only cost you money, it can take months to even hear back.
So: it can be a pain to find the copyright holder or their representative; it can cost a lot of money; and it can take a lot of time. Oh, right, and if you have a contract with a publisher for the work the epigraph will appear in, there’s a pretty good chance that they have pretty specific “permission guidelines”. Meaning that if the permissions you get aren’t up to the publisher’s standards, you can start the whole process all over again.
Maybe you should read option 2 again?
In conclusion
An epigraph can be beautiful, fun and powerful. But if you want to publish a work with an epigraph, be prepared for headaches!
I hope this short blogpost was able to clear things up for you a bit. If it didn’t, and you want to discuss your specific situation with me, just schedule a FREE one-hour meeting using the button on the bottom of your screen or by going here!
