Kate Bush and Ulysses

The James Joyce Estate has granted Kate Bush permission to use extracts from Ulysses in a song titled “Flower of the Mountain” – over twenty years after her original request was refused

The probable reason for the James Joyce Estate’s change of mind is that copyright in Ulysses is about to expire.  Under UK and EU copyright law, for editions published during the author’s lifetime, copyright in the work usually subsists for 70 years after the calendar year of the author’s death.  Joyce died in 1941, meaning that Ulysses will no longer be protected in the EU from 1 January 2012.

It’s debatable whether Bush ever needed the permission in the first place.  You infringe copyright in the UK if you copy a “substantial part” of a work. What is a substantial part has been the subject of some litigation (including the “Macarena” case!!).

But can a 100 word pop song ever copy a “substantial part” of a 10,000 word book?

Well  it is clear that “substantial part” is not calculated by reference to the percentage copied but rather the nature of what part was copied. So, for example, if you only copy 2% of a composition, but that 2% is the main melody or “hook” then that is likely to be a substantial part.

So my typical lawyer’s answer is “maybe”.

I can’t actually find a case about a song infringing the copyright in a book, which indicates that it’s quite unusual. Of course our Kate has some form here. Her biggest ever hit, the splendid Wuthering Heights, was based on Emily Bronte’s novel of the same name.  The song features lyrics which mention the names of characters from the novel, allude to the plot of the novel, and directly quote at least two sentences from the novel.  Luckily copyright infringement wasn’t a concern because copyright in Wuthering Heights had long since expired.

I also note that  Franz Ferdinand referenced Ulysses in song in 2009 without repercussions.

In addition to copyright Kate would also have to worry about the separate right of the James Joyce Estate to object to “derogatory treatment” of Ulysses under rights known as “moral rights” .  The exact nature of author’s moral rights vary from country to country, but in the UK the rights have been statutory protected since at least 1988, and also last for the same term as the work’s copyright.

Perhaps this evening I’ll put on The Red Dress (the Kate Bush record of course, not the item of clothing) and dig out my copy of Ulysses.  I’ve read all the explanations of what the book’s about, I’ve been to the Martello Tower at Sandycove, but I’ve still never got past Chapter 1!

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