I really didn’t want to do it.  I tried to stop myself.  But unfortunately I am going to have to get into this messy discussion.

Last Tuesday, Christina Mulligan, a visiting fellow at Yale Law School’s Information Society Project, posted a piece titled “Copyright: The Elephant in the Middle of the Glee Club” and cross-posted at Balkinization. The thrust of the post was that if the characters in Glee had tried to perform the songs that they do in real life, they would be subject to millions of dollars in potential liability, and that such liability would be a bad thing.

Where does this liability come from?  Ms. Mulligan points us to a few examples.  First, she points to a video where the cheerleading coach is the center of a re-hash of Madonna’s Vogue music video.  Second, a video of the same coach dancing to Olvia Newton-John’s Physical being posted online.  Third, the glee club’s creation of derivatives of various songs by mixing more than one musical work together with another.

Ms. Mulligan, echoing a common theme among remixers, questions what she sees as potential liability for these actions, and she muses at the juxtaposition of content producers’ characters committing copyright infringement on network television.  She goes on to discuss various circumstances where remixers have acted without copyright licenses and the holders of the copyrights in the works used have sought either damages or license revenue.  Finally, Ms. Mulligan concludes with a moral argument.  Citing the constitution and the original copyright act, she asks, “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?”

First, a caveat, we are only talking about the copyright laws of the United States here.  It is easy to make global copyright arguments, but the exceptions and cutouts in other legal systems generally come from a very different place, and this post would be far too long if an attempt was made to cover them all.

Second, a clarification, Ms. Mulligan’s piece doesn’t discuss very many of the specific provisions of the United States Copyright Act.  One particularly curious omission is section 110(4), which provides an exemption for performances of nondramatic musical works without the purpose of commercial advantage and without payment to its performers, promoters, or organizers if there is no admissions charge.  For most of the glee club’s performances, this provision likely will cover them.  Interestingly, section 110 provides that “not withstanding the provisions of section 106…” such a performance is not an infringement of copyright.  This language is interesting when compared to other exceptions, because it does not specify that it is an exemption to the performance right particularly.  I haven’t done the research on this topic, but I could see a court interpreting the section to permit not only literal performances of musical works, but also derivative performances.

Note, however, how the glee club’s performance differs from the work of most remixers.  The club isn’t trying to profit in anyway, the performances don’t use sound recordings but rather their own vocals and instrumentation, and there is no cost to those at the school to watch them perform.  Remixers, on the other hand, are taking a completed work, cutting it up, and repackaging it as their own.  Not only that, but generally they are doing so not for the love of the craft—although there are certainly some that do—but to profit either directly or indirectly.

For the performances in the class room, there is an even broader exemption under section 110(1) for face-to-face teaching activities.

Third, when it comes to sound recordings, rights are limited by sections 114(a) and 114(b).  Section 114(a) states that the rights to display and performance are not afforded to the owners of copyright in sound recordings.  Section 114(b) further limits the copyright holders’ rights solely to the sounds in the sound recording themselves.  Since all of the performances, reproductions, and derivatives by the glee club are of their own voices, including Sue Sylvester’s performances of Vogue and Physical, the sound recording copyright holders have no rights to assert.

So really we are just left with the rights assertable by the copyright holders in the underlying musical works for the audio/visual works created based on their songs, and the limited copyright in the original music videos of Vogue and Physical.  For the re-makes of the music videos, you’re probably sunk, because there are no simple exemptions and the works are likely to be found to be copyright infringement.  On the other hand, I don’t see why you couldn’t create your own visuals that aren’t infringing.

So what’s left, you just need an ASCAP, BMI, or SESAC license to put the underlying musical work into your audio/visual work.  I’m really not sure if most schools have licenses from the performing rights organizations, but for schools with campus radio stations, they probably do.

Ms. Mulligan thinks that the worlds of Glee and the RIAA—who, as mentioned above, doesn’t have rights here—don’t mesh.  She is bemused by the rewards lavished upon the students portrayed on Glee when compared to the punishment of remixers in the real world.  However, unlike the real world, the performers on Glee are for the most part making productive uses of the underlying works, adding their own vocal, instrumental, and choreographic performances to the underlying musical works.  Ms. Mulligan doesn’t see a way for the two worlds of creativity and amateurism to co-exist under the current copyright regime, but I do.

It’s not that I want to give copyright holders my full throated support.  Sometimes they go too far, sometimes they assert their rights too aggressively, and sometimes the law needs to pull back on them.  But guess what?  Frequently, the law does, both in the cases and in the statute.

I imagine that the  remixers would like to continue to do their remixing for free, but I also imagine that they want something to remix.  The kids on Glee are making their performances out of musical works that are cultural icons, many of which by people who were full time artists.  If the companies that finance those artists go out of business because no one is willing to pay for the music anymore, it will cripple future artists–in particular, artists who want to create works with more than a vocalist and a guitar.

So yes, a debate about the proper balance of copyright is a good one to have, but let’s not forget the provisions expected to balance copyright that already exist in the copyright law.

Copyright, Intellectual Property, Internet, Media, User Generated Content