Copyright: The Elephant in the Middle of the Glee Club

This Tuesday, millions of eyes will be glued to the season finale of Glee — a popular musical comedy airing on Fox. Excitement is building among the show's viewership, but my own enthusiasm for Glee has recently given way to confusion over its message.

The fictional high school chorus at the center of the show has a huge problem, you see — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops, to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don’t match. Both Glee and the RIAA can’t be right. It’s hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee — after Sue’s Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning.  So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Comments

The reason no one is suing Glee for replicating things like Madonna videos is that it is arguable that it is a parody, and what would be the damages? It would be impractical to sue a studio and a network when the net effect of the parody was an increase in income to Madonna and her colleagues. I watch Glee because there are cute talented girls singing and dancing in cheerleader outfits, that's it. If they hire Yale copyright professors to start making notes on all the important issues they should be discussing, I will never watch it again.
Current copyright law needs an overhaul. Mash-ups aside, anything that permits the prosecution of six-year-olds for writing 50-word stories about their favorite TV or book characters is fundamentally flawed. The public perception of copyright in the US is actually closer to profitright for the original work, which is a much more sensical description of what copyright is trying to protect and promote. Separating the right to create and the right to make money from it would be a huge step in a positive direction.
This is so brilliant! I can't believe I never thought about this. Thank you.
Aren't educational settings exempt from obtaining copyrights for performance? I agree with the step by step imitation of the music videos being wrong, but school groups don't need copyrights (according to a music class I took in college long ago....)
This is not a "gotcha" situation. There are many many videos on YouTube where the creators have covered other people's songs or used actual recordings of songs, either in their entirety or as part of mashups, and they are not sued or asked to take down the songs. There is more bending of the rules than there is suing, so the situation in Glee is reflective of reality.
@ Suzanne Lainson: I tend to find that those "many many videos on YouTube where the creators have covered other people's songs or used actual recordings of songs" are regarded by the original producers as more of an homage. Take for example, the group Lonely Island, of which SNL's Andy Samberg is a part. They encourage their fans to copy their work, because it's all about having a good time. Much like SNL or Weird Al spoofing a popular song, I believe the artists feel it is an honor to have so many people want to spoof or make their own version of the song. Of course you will occasionally get the Metallica situations... which make no sense considering some of Metallica's <i>own</i> material was taken from other bands. http://www.cracked.com/article_18500_the-5-most-famous-musicians-who-are-thieving-bastards.html
When I was in High School Show Choir and Pageantry/Dance Team (1995-1999), as long as the school legally purchased copies of the score, we could perform it. Also, our pops concerts, made up of primarily what you guys are calling "mash-ups", were never questioned because unless we arranged and composed ourselves, gave legit credit to official artists/composers in the programs, and only used it for the educational purposes (the music or scores were purchased or "checked out" from the department's music library), there was nothing illegal ever committed. Family's recordings of their dear children performing Mahler in a orchestral concert, or dancing to Cyndi Lauper were kept personal and only as nostalgia... I would think that posting the recordings on YouTube for recognition could be considered copyright infringement. After the whole Napster file sharing fiasco, of course. As a High School Coach/Choreographer myself, if we ever want to enter a National competitive Circuit, we are required to apply and provide proof that we have permission to use the song(s)the students are performing to that season. AND, we ALL should know that the music we know of and hear nowadays was ripped off some previous musician's song which was ripped off of a previous musician's song, which came from someone's friend's recording of, their friend's composition, which was inspired and influenced by a performance of a composer's music which was taken from local folk or nationalistic music, which has been sung for many many many ages by many people. The original composers will never be known because it just wasn't ever written down and there were no laws about copyright in medival times with early music... which is why when you were an artist, you made hardly any money to survive until recently in history. Hense the affectionate term we all have heard, "starving artist". But one must admit that being a "starving artist" was fun until you were going through legit "hard times".
Before Glee, these fears have always loomed in the back of the minds of our collegiate A Cappella groups. They arrange their own versions of other artists songs (frequently expressing a much greater modicum of creativity than Glee's takes on popular songs), and then these groups go and perform the music for fees and even sell their CDs with these songs on them. Permissions are almost never cleared because these groups run on almost non-existent finances, so they are always dangling on a precarious perch of illegality. Interestingly enough, Glee's "first" arrangement, the 80's hit "Don't Stop Believin' " was basically a direct rip-off of the arrangement created and performed years earlier by USC's SoCal Vocals, a collegiate A Cappella group. If you listen to their version (at http://scvocals.com/recordings.aspx?a=5) and compare it with Glee's, you will find that there are FAR too many artistic copies between the vocal arrangements. Since Glee licensed the song though, and the SoCal Vocals did not, the group could never seek remedy for the plagiarism of a great arrangement that, undoubtedly, helped to push Glee into the spotlight.
In Glee, they are frequently shown singing off of sheet music. Assuming that Mr. Schu doesn't spend all his time arranging songs based off of listening to them, that means he purchased the rights to perform the music by buying enough copies of the sheet music so that each member of the club has one. The Sue Slyvester youtube debacle is debatable, as she did not post the video herself. I don't think there is a law of her making a parody of Physical for her own personal enjoyment and use.
I would be *really* surprised if the producers of the show didn't have sync licenses to use the songs on their show - they'd be in the hot tub otherwise. Sure, publishers and songwriters all deserve their share of the $ and credit, but Glee is a fun show with songs and entertainment. Clearing songs is boring legal stuff, can't blame the producers for not interweaving that into the story.
Yeah copyright is ridiculous. I mean just take a look at the song "Happy Birthday." It's probably the most memorable, overused song on the world and it can cost almost $30,000 to license it for use in any public sanction. restaurants could be sued if their employees were caught singing it to a customer. Girlscouts were warned not to sing it at camps. My school's marching band played the famous line from the song "Iron Man" by black sabbath.. I believe licensing just that line cost a few grand. It's just ridiculous.
@Betty ... Actually, there have been numerous law suits and threatened suits over the years for copyright infringement in educational settings. To be blunt ... more threatened suits and cease/desist letters go to schools than I can even imagine per year. This of course included music, literature, worksheets, and even artwork. There was a pretty big case a number of years ago, where Peanuts sued an elementary school teacher for having a mural that included a "snoopy looking dog" in her classroom. The first person who posted had the right idea when it comes to music at least. If they aren't making money from the performance or there is no loss of profit for the copyright holder then it should not be effected by the law.
This makes me think of the semi-popular website set up by actor Joseph Gordon-Levitt called hitRECord.org. It is based off the idea that all artistic work is derivative of other works, and therefore encourages creativity by creating works that are derivative of each other. When you upload something to hitRECord, you basically hand over the copyright for that work over to the community of artists, who are then free to mix it up, make a mash-up, and create a new and different kind of art. There are a few rules (as Joe explains on the site's FAQ): You can't upload anybody's else copyrighted material - so he himself cannot post a cover of a Tom Waits song that he did a couple of nights ago (see his Twitter), but if he made his own original song, he's free and welcome to post that. 2. When a remix occurs, basically the only rule is that the original uploader is given credit. It's like citing something in a paper - I don't have to contact Bloomsbury when I want to quote Harry Potter in my published Master's Thesis, as long as I give credit to the original source. And 3., if something on the site becomes popular and gets used for commercial purposes, the users who are credited with the work are compensated for the use of that video/song/piece of art. Then and only then do regular copyright laws come into place because money is being negotiated. I like this casual approach to copyright - it recognizes that most artwork is inspired by and stems off of each other. It's a principle a lot of bands/artists/movie makers are working with, whether they realize it or not, and I think it's time execs realized it. The third part - getting monetary compensation - is where things get sticky, and I admit I don't know what to think about that. But I like the idea of simply giving credit where credit is due, without worrying about having to buy the license to use it or whatever. Related: John Green of the youtube sensation vlogbrothers recently posted an interesting video over a real-life copyright problem going on with Viacom and Youtube. It's an interesting watch for those interested in copyright: http://www.youtube.com/watch?v=-1PIICmNlH0
"Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law)." There's no law regarding mashups, and it's not illegal; the user just has to get permission from the owner (and pay), the same way any other good or service works.
Yes; permission to compose and perform mash-ups must be negotiated with copyright holders of the underlying musical compositions. The argument here is that regular people (i.e. amateurs and kids) can't reasonably do this because of the cost and time required to negotiate these licenses. Clearing rights is very expensive. And once you are negotiating, the cost of the copyright holders' lawyers' time is also expensive. Filmmaker Nina Paley ran into these problems trying to include old jazz songs in her film "Sita Sings the Blues." See http://www.sitasingstheblues.com/faq.html ("copyright and distribution" section). An excerpt from Paley's Q&amp;A: "Q: Can't you negotiate a special deal, since this is so small-scale compared to a distributed release? A: There was no way to negotiate their contract, because it would have cost them more to negotiate than they would have gotten from me. The contract is $3,500 per song, and it would have cost them more than $3,500 for their lawyers to revisit the contract and modify it. I must emphasize this is a system problem. This is not an individual's problem. Everyone involved in this is truly just doing their job. It's the system itself that is broken. If you can't negotiate the contracts because it costs more money to negotiate a reasonable deal than they could earn, it is crazy. I borrowed $50,000 to decriminalize the film, just to make it a little bit safer to give the film away for free, which is crazy."
@Joe: I think Christina is talking about the *characters* on Glee not clearing rights for public performance. I'm sure the network makes darn sure the *show* has cleared all the rights. Most distributors require full rights clearance before they will even touch something. @Alex: I work on at a college, and have often thought about the CDs put out by the school's a capella groups. Sometime I wonder if they know that it's not that expensive to license a song from ASCAP or BMI.
Copyright laws as they stand are just fine, thanks. DJs that make mashups and distribute them online for free might not be making a profit through the actual recordings, but they make a killing by performing at clubs. The more well known they get, the bigger their paycheck is when they perform. And they get big by using other people's work to raise their profile. They do whatever they can to piggy back off of other people's hard work. They just take whatever big song is out, mix it with some old classic and it goes viral. Then they tour the club circuit, usually playing copyright protected songs that they don't have clearance for and rake in the dough. You make your argument for copyright reform by hiding behind children, which is pretty gutless. Oh, it's just school kids playing around with music and learning, that's all that's going on. Yeah, right. You know what's going on. As soon as copyright laws are loosened, a bunch of a-holes are gonna see a pile of cash sitting on the table and stampede toward it. I imagine you're one of them. You don't need to break copyright laws to learn how to make a video or how to write a song. If people weren't so shallow and lazy they would know that. You wanna perform a song? Write one yourself. You wanna make a video? Come up with your own idea. You wanna make a mashup? Too bad and good riddance. The only reason people want copyright laws reformed is because they want to exploit other people's work for their own monetary gain. Suck it up and do something original. Remix culture is bogus. It's lazy, vapid and inane. Like I said, copyright laws are find just the way they are, thanks.
There is absolutely nothing realistic about this show in any other sense, so why are we so concerned about these characters seeking proper license to use their songs?
I generally disagree with the notion that copyright does not involve some kind of property right, but rather a privilege. I'm familiar with the holding in Wheaton, and I agree that copyrights cannot be considered property in the traditional sense. These rights were created for instrumental purposes. But at it's core, copyright entitles the owner to exclude others from using a particular work, just as traditional property law entitles the owner to exclude others from using a particular piece of real property. This exclusionary right of copyright owners was created as an economic incentive to create original works of authorship, fixed in a tangible medium. Unless the original authors can exclude others from capitalizing on their work, it's likely that such authors will not find a sufficient incentive to create. Such an incentive contributes to overall welfare by generating material (made up of such original works) for public consumption and learning. In this way, copyright, as a kind of property promotes the progress of science/knowledge/learning. That being said, copyright law does have some important features that distinguish it from traditional property law and that mitigate against some of the harsh consequences being discussed. In fact, it's very likely that current copyright law would permit many of the activities on Glee. In this regard, It's be important to focus on the two specific rights involved when discussing these activities (Mashups and Sue's viral video aside). The creation of sheet music involves the right of a copyright owner to make copies of their work. In order for somebody else besides the copyright owner to legally make copies of sheet music, they will need a print license from the copyright owner. Fair use *may* permit someone to make copies of sheet music without a print license, particularly for teaching/classroom purposes or purposes of criticism/commentary. Several factors are involved in the determination of whether such use is fair use. These factors include: (i) purpose and character of the use (including whether it's commercial); (ii) the nature of the copyrighted work (whether it's particularly creative, such as a song or painting); (iii) the amount and subtantiality of the portion used, in relation to the work as a whole; and (iv) the effect of the use upon the work's potential market or value. 17 U.S.C. 107. Given the facts in Glee, it's likely that Will's creation of the sheet music constitutes fair use (assuming he created it himself, if he didn't then his infringement liability may be much smaller). The performance of the sheet music implicates a copyright owner's right of performance. In order for someone besides a copyright owner to legally perform a work, they need to obtain a performance license from the copyright owner. Generally speaking, venues which typically host music performers will address the issue of the performance license by purchasing a "blanket license" from an established performing rights society (such as ASCAP, which operates as a central clearing house for performance rights conveyed to them by copyright owners). As with the print license above, it's possible that somebody besides the copyright owner may legally perform a work, if the performance is considered fair use. Further, it's possible under these particular circumstances that the performance may otherwise be licensed by lawfully purchasing the sheet music by way of implied license. In this way, those who purchase a record from a record store are licensed to play the record (or perform it) in their home for personal use. Likewise, it would seem odd to lawfully sell sheet music without permitting the purchaser to perform the music, at least under certain limited circumstances. For these reasons, it's not so far fetched to believe that the characters in Glee are acting illegally. Current copyright law could very easily side with Glee on this one.
Thanks for the thoughtful comments, all. My sense is that fair use is unlikely to win in the three cases outlined in the post (none of which, incidentally, are straight performances of musical works, for which a statutory licenses are available). But the point isn't really about whether there's a chance Sue or Glee could win the fair use argument. The central idea is that if a group of regular people engaged in these same activities -- activities that many of us agree encourage creativity and growth -- in their community for fun, they could be in big trouble. Arguing fair use also means the alleged infringer is already in court, paying a lawyer, and potentially liable for any amount up to $150,000 per work infringed. The risk of losing and the cost of legal representation is enough to cause many people singled out by rights holders to pay smaller settlement fees, still often in the thousands, and/or to agree to stop their activity. Copyright has its place, but its current scope and structure inhibit a lot of the same creativity and education it's supposed to motivate. While the Glee Club could acquire the licenses to perform songs traditionally (i.e. not remixed) through rights clearing organizations like ASCAP, BMI and SESAC, they could not easily negotiate for the rights to make the mash-ups and the video works, which are not covered by the available licenses. This is a problem with the scope of copyright protection - how broad the right is. Rights to make derivative works like remixes and mashups can be difficult or impossible to acquire; the fine for making them without permission can be $150,000 per work infringed. This has the effect of discouraging creativity, the opposite of what the copyright clause and statute should strive to achieve.
Fair use applies. Transformative. Does not affect market for original works.
Unfortunately the "transformative" prong of the fair use defense has not always been interpreted as broadly as it could be. For example, a trivia book about the television show Seinfeld was found to infringe on the television program. The trivia book obviously didn't include any clips from the show, but was still found to be infringing. The wikipedia article summarizing that case is here: http://en.wikipedia.org/wiki/Castle_Rock_Entertainment,_Inc._v._Carol_Publishing_Group, as well as the original opinion, here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&amp;navby=case&amp;no=977992 . Unfortunately, when a fair use defense isn't a "slam dunk" for the defendant and when a rights holder wants the use of the work to stop, the issue must be hashed out in court. This can get very expensive, and even when a party could win a fair use defense, it's often not worth the huge financial cost to find out.
Of the three cases you have outlined above, only one is similar to the case of a glee club performing pieces of popular music. Those other cases involve actual and tangible copies being made and distributed. With regard to the Gray Album, Danger Mouse ended up capitalizing on the attention to generate a pretty healthy career as a producer. And with regard to the YouTube videos, those take down notices are rebuttable. Granted, the issue of whether owners should be able to suppress speech and creativity with such a low threshold is contentious, but I think the mechanism is much more preferable than the alternative (http://www.kayiralaw.com/repeated-issues-with-the-dmca-googles-blogger-service-the-right-of-first-publication/). To the extent that these take downs lead to lawsuits, I believe that the frequency of those suits will diminish given recent events (http://arstechnica.com/tech-policy/news/2010/03/dancing-tot-prevails-over-umg-in-youtube-fair-use-case.ars). This is particularly the case given the fact that many major record labels have negotiated something comparable to a blanket license with YouTube. I agree that the possibility of a $150,000 damage award is threatening. But that should be all the more reason to clear the necessary licenses in advance. The cost of using is much more manageable on the front end. And given the increasing body of independently produced music, those costs are decreasing day by day. As somebody who works with clients daily in obtaining mechanical, sampling and synchronization licenses, I can vouch that the process can be much more manageable than portrayed here. Finally, If one insists on infringing, it becomes a question of risk tolerance. One important consideration when evaluating one's risk tolerance is the enforcement factor. The Girl Scout example may be an extreme case, but for ever Girl Scout that gets sued for campfire songs, there are many many more that continue singing. Without broadcasting your use of a work via some form of mass media, your level of exposure is small. Even if you do broadcast your use via the web, it's easy to do so anonymously and discreetly. Learning how to create a mashup is valuable, the added value of publishing the mashup online is questionable. Likewise with video performances. Students can just as easily share there creations with their immediate classmates via CD or disk. The added value of sharing their material with people outside of the classroom is also debatable, as these people are much less likely to enrich the student's creative learning. To the extent that students insist on mass publication, then the likelihood of a suit increases. As the likelihood of a suit increases, the costs of use (measured by the cost of defending and possibly losing a lawsuit) increases. Under these circumstances, it should be clear that the particular use contemplated (i.e. online/mass publishing) increases the cost of use tremendously while adding little to the creative experience.
Last time I checked, everything would be okay as long as they didn't use it to gain money. I may be mistaken, but none of the mash-ups, videos, etc. were purposely shown to the public. I may be mistaken though.
I go to a high school where we monetarily gain from a cabaret of songs (including several mash-ups) every spring. As far as I know, we do not obtain ANY copyright licenses and we perform at least 20 songs, for up to 10 performances, and have for at least 10 years now. That would be a LOT of money, enough to shut the school down, if it ever came to it. The point is, a lot of school teachers and schools either don't think about copyright or turn their head at the right times in order to keep the learning process going.
Interesting. I'd never thought about that in terms of the show. However, as a teacher, I've thought about copyright laws a lot. I've always believed that copyright laws need some sort of 'educational exemption' clause. There's so many great films, etc. I could be using to educate my students but can't for fear of being 'caught'.
The deeper injustice of copyright law is that many of the most aggressive defenders of their copyrights are really nothing more thieves. Ray Charles steals a gospel song called "It Must Be Jesus," relabels it "I Got a Woman," and has a hit with it. He paid nothing to either the gospel group that popularized it or to the original songwriter. Kanye West had to pay for the samples he used for "Gold Digger," which profited the record companies, Charles' estate, and the lawyers involved. However, if you use samples of write a song based on "I Got a Woman," see if you don't get sued. Walt Disney basically traced over Felix the Cat, who was based on the picaninny stereotype popular at that time, giving the character rabbit ears and naming him Oswald. When he lost rights to Oswald, he gave the character mouse ears and called him Mickey. Try painting Mickey on the side of your preschool and see how long it is before you're contacted by Disney's lawyers. The problem with copyright, especially in connection with artistic expression, is that it's based on the presupposition that every artistic idea occurs to the creator out of the blue, and has never been seen before, and that the creator is being robbed if anyone so much as copies him or her. What we have today are the descendants of copyists who sue and threaten anyone who threatens them. This idea that, except with strong copyright laws, artists will not be inclined to create anything is simply ludicrous. With or without copyright law, there has never been any shortage of art to experience. The immorality of this entire situation is easiest perceive if we look at who groups like RIAA and Disney choose to go after. RIAA has never done anything to help artists like Willie Dixon recoup the money for the songs stolen from them by groups like Led Zeppelin. They are only interested in copyright azs far as it will earn them money. Disney has never done anything to compensate the estate of Ub Iwerks, the artist who did the actual tracing for Disney, for his creativity. Once again, their concern is only for their own livelihood. Beneath all of the rhetoric, what we really have are venal people pursuing their own selfish ends with no regard for who gets hurt. Don't even get me started about the long history of the corporate members of the RIAA pirating their own recordings as a way to cheat their artists out of royalties.