Technically Legal

Technology and the law. Done right.

Don’t Stop Believing in Copyright

In a Venn diagram of my interests, this story falls into the very narrow intersection of technology, digital media rights and showtunes.

Christina Mulligan, in a guest post on Balkinization, talks about the lack of copyright discussion on the hit TV show Glee. Mind you, this is not a discussion of the rights involved with the making of the show, which has been done legally by negotiating the rights to make cover versions. Rather, in the fictional reality within the TV show, would the RIAA or ASCAP file a lawsuit against the Glee club for their shot-for-shot recreations of copyrighted music videos and their cover versions and mashups of unlicensed songs? And would the plucky teenagers be dragged into a courtroom, only to have their case dismissed by the judge, guest star Nathan Fillion?

There’s a range of arguably infringing activities going on in the Glee club. The worst is probably the music videos they create outside of the Glee club (see Glee’s version of Single Ladies compared to Beyonce’s original). These use the original recordings of the songs, which Mulligan points out has been troublesome in the past, even for amateur non-commercial videos. Then there’s the covers of songs (for example, “Don’t Rain on My Parade”) that are reproduced without rearrangement (i.e. are performed with roughly the same notes and instruments/voices as the original), and, therefore is, arguably, not a derivative work. Next would be the derivative arrangements of the songs (“Don’t Stop Believing”, “Hello, Goodbye”, both of which have been arranged for the Glee club with extra vocal harmony), most of which constitute public performances. Lastly, there are the songs that are clearly not public performances (“Can’t Fight This Feeling”, sung alone in the shower, “Like a Virgin”, a fantasy sequence), which the RIAA probably would not pursue in court. I think there’s a reasonable expectation of privacy in your shower, and failing that, in your imagination.

Despite the glaring instances of infringement in the Glee club, they could still argue their actions constitute fair uses of the copyrighted works. The strongest argument supporting this is that these songs are used for nonprofit educational use, which is one of several factors considered under the fair use doctrine in the US Copyright Act. The fair use doctrine also takes into account whether an allegedly infringing activity was use for commercial purposes and what affect the use has on the market for the copyrighted work. This is why the Glee club found themselves trouble in the episode “Mattress” for performing “Jump” in a mattress commercial, because they received compensation for their performance.

Ultimately, most of the songs performed by the Glee club fall into a nebulous gray area, and it would be up to a judge to determine if the use was a fair use. It really could go either way. On the one hand, the RIAA and ASCAP have been known to prosecute for much less. On the other hand, there are real life groups like The PS22 Chorus which are essentially doing the same thing and presumably not being prosecuted.

Comments Off Posted in: Commentary on June 11, 2010

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