Glee vs copyright: do as I say, not as I do

Fox's Glee sounds like a fun bit of TV, and it's true to life in that it features lots of scenes in which people who care passionately about art end up copying the works they're inspired by, and share their copies. But what does it mean for Rupert Murdoch's Fox to bring us all these positive messages about remixing the culture around us as a natural part of life and creativity, even as Rupert and his family are travelling the globe, calling every act of copying theft, declaring that fair use is illegal and will be eliminated, and that every use of work, no matter how trivial, must be compensated?

Christina Mulligan, a visiting fellow of the Information Society Project at Yale Law School, guest-posts on the Balkinization blog:

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.

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Daedalus

“Another trashy, worthless contribution to the world from Fox. Flush it.”

I dunno. It inspired me to play Bohemian Rhapsody at my first child’s birth. It was prit-tee epic.
Anonymous

It seems to me that there TV very often shows people blithely doing illegal things for which there could be serious consequences in real life. Reckless driving, say. Why is the copyright violation on Glee an exception?
Steve Schnier

@ Brainspore #29 – BINGO! Just because you see something done on a TV show doesn’t mean that you’re allowed to do it too.

“Monkey See – Monkey Do” is not a valid legal defense.
Anonymous

One thing to consider, wouldn’t we have worse television if the views of all programs on a channel had to conform to the perspective of the people owning the channel?
Doug Watt

I don’t think Ms. Mulligan is correct. Choruses commonly perform medleys of songs, in theaters and on TV, like Glee does and the only thing they have to buy is the sheet music.

As to why she calls a medley a mash-up, I don’t know.
- Anonymous
  
  No, technically, when a chorus performs a piece in public, they should be paying ASCAP fees which go to the composer, and if they don’t, they could receive a cease & desist. Sale of sheet music does not imply the granting of performance rights.
  
  I’m a choral composer (e.g. http://www.gonzalescantata.com, http://www.youtube.com/watch?v=L3-IIndibgM), and this can be a tricky issue. Many choruses photocopy parts or share sheet music, and don’t report performances to ASCAP, so that composers get nothing at all. I’ve heard of composers finding out about performances of their music (ensemble advertises concert online and uses composer’s name in promotional material, for example) and being faced with the prospect of going all legal attack dog on them. It’s not something we want to do – we want our music to be performed – but it’s hardly fair for us to get absolutely no recompense, especially when our names are being used to attract paying concertgoers.
- Anonymous
  
  A medley is several songs played one after another; a mash-up is blending two or more different songs into one. Glee features quite a few of the latter, like “Halo”/”Walking on Sunshine.”
mrtopp

I’m thinking along the same lines as Krater here.

It would not be copyright violation for a Glee club to sing these songs in a school.

An inter-school competition based upon the singing of copyrighted songs would (with almost total certainty) be appropriately licensed.

The Vogue video was not distributed (IIRC), and is as likely to draw a lawsuit as the time I decided to record myself playing “Wish You Were Here” in my mother’s basement … which I then proceeded to play to fewer than five other people.

And the Physical video would have received a takedown notice and been removed from YouTube within 24 hours, rather than result in a duet with Olivia Newton John. It would not have cost anybody $300,000.

The consequences described in the article simply do not exist in real-life-world of a glee club such as that on the show (assuming that such glee clubs exist at all).

I’m not sure how the subject of copyright is expected to arise naturally in that context. The writers would actually have to *force* it in.
eaphelps

Does this mean that my roommate picking Dave Matthews riffs on the front porch is breaking the law?
- Boomshadow
  
  Yes. And be careful what you sing in the shower.
Anonymous

I would assume this would fall under Fair Use due to being done in an educational facility. Because these are students in a public school, wouldn’t this fall under Fair Use?

National Association for Music Educators provides a guide for this.

http://www.menc.org/resources/view/copyright-law-what-music-teachers-need-to-know
Anonymous

I wouldn’t be too critical of the show. They are attempting to portray real life, and I’ve seen a lot of glee clubs that recreate popular video sequences from time to time. I’ve seen a semi-pro football team cheerleader squad set up a recreation of Michael Jackson’s thriller. I’ve seen all sorts of video recreations, both live and in video format.

In my opinion, this is not copyright infringement (in spirit) as much as it is a clashing of technologies and previous culture where the copyright laws were written before a lot of this capability existed or that anyone ever thought about doing this sort of thing.
It seems to me that the only thing the original artist would have rights to, is music residuals.
jihobbyist

The shit they sing on glee should be outlawed. Awful shit really. If the show is sued, they deserved it. What awful shit that they sing.
ian71

When we all break the law it means we all think the same thing OF the law.

It’s no different than when thousands of drivers are all going 60 in a 55 zone. Cities that were corrupt or broke enough to implement photo radar can rack up hundreds of thousands of dollars in speeding tickets.. but it’s purely for revenue generation.

If Big Media had a way to remotely scan your vehicle to see if you were playing an unlicensed mp3 (in 100 years they might, don’t laugh) and then ding you for 100-1000 times what the song was originally worth, they WOULD do so… purely for revenue generation.
Anonymous

Why is this even a question? Glee is a work of fiction requiring suspension of disbelief. To whittle it down to what would happen in the real world is like trying to track down every violation that Alice could be charged with during her stay in Wonderland. It’s a preposterous thing to do and it kills the reason we watch fiction based TV: to escape into worlds we can’t live in.
mormolyke

If mash-ups were considered transformative works, The Rolling Stones wouldn’t have been able to sue The Verve out of existence.
RicJon

The “fine” for copying Madonna may be $150,000. But the ASCAP fee for a glee club (or as we call it in the 21st Century: “show choir”) to COVER Madonna in competitions, is FAR, FAR less than that.

Thus it is QUITE possible and probable (I’ve played in Show Choir backup bands) that a high school musical performance of the songs in Glee are both economically feasible and common.

Real Life glee clubs do pay the licensing fees and do preform popular music and do exist largely the way they are depicted on the show.

No one in a show choir/glee club talks about the ASCAP fees because it’s not that much money, it’s part of the built-in costs of having an organization like that, and it’s often paid for by the STUDENT’S fees (as there are fees for bing in sports). Talking about the fees on the show would be unrealistic and preachy.

I agree with Cory that there should be no fees, but Ms. Mulligan is disingenuous at best to imply that Glee encourages illegal behavior or misrepresents reality–regular, high school, law-abiding reality.
RDMaxwell

I think what Mbelinkie meant was that individual people have not been sued for YouTube posts.
However, I believe the suit againt YouTube (and ISPs et al.) amounts to an even greater risk to personal use than going after the individuals, because it encourages companies to not publish anything that might be construed as an infringement.
Just look at how some photo labs will not print a photo if it looks “professional.”
The end result is aspiring artists can have an even harder time breaking into the business, when the avenue to exposure is right there, a little less accessable than it should be.
arkizzle / Moderator

Anon35 & Krater

I didn’t for a second suggest that mashups couldn’t be transformative works (note my “can apply to mashups”), or don’t deserve their own copyright. (in fact: I rely on that for some of my own work).

Just Krater

You’re talking like the presumption on digital remixing/mashups is that they’re legal until proven otherwise, but that’s not true at all. Infringement is the presumption, unless you meet the specific criteria that allow it. You need to prove that it’s transformative. Similarly, if challenged you may need to prove that something qualifies as parody.

Don’t get me wrong, I wish the presumption was fair use, and I’ll continue pushing til we reach that point but it just isn’t like that now.

Not sure why you included links to people who didn’t pay their royalties and were sued..

One of your points was that people only get sued for infringing mechanical copyright, and another was that any place where performances happen are already covered by blanket licenses for that public performance.

I provided links to occasions where people got sued for non-mechanical public performance, in places assumed to be covered.

My point was that the original article was a flamebait piece using the popularity of Glee to assert anti-copyright propaganda.

Then maybe you should talked about that, instead of “It’s terrible to think that everything in this article is completely wrong when it comes to copyright law.”

In truth, the article uses Glee as a device to discuss the imbalance between our shared reality and the strictly theoretical law-space that copyright legislation increasingly resides in. I don’t think it’s half as much about Glee (or its responsibility to educate on copyright law) as you’re reading it.
Anonymous

Releasing an album that is other people’s work? = lawsuit.

High School cheerleaders singing a hip song to root on their team? = America

Get real, people.
Don’t buy anymore crap from the so-called “pop music” brand. Listen to more local bands, and folks who are creating music for pleasure, not dollars.
Screw MTV, Radio One, and all the others….
We are who we want to be!
benher

Nothing like co-opting the co-opter!
teapot

The article fails to mentions that Glee, like almost all Fux shows (excluding animation), sucks like a 1000 vacuums in a black hole.

Another trashy, worthless contribution to the world from Fox. Flush it.

teapot

(forgot to close that ol’ i tag there, sorry)

Hans

Thanks for posting this! And kudos to rebdav for a fine summary of broad picture. We should remember that copyrights (and patents) are government granting and protecting a monopoly. This should only be done with the greatest of caution in the most limited of circumstances. We should never view something as a right to a government protected monopoly.

Brainspore

Just to play devil’s advocate for a moment, airing a TV show with protagonists who break the law isn’t necessarily an endorsement of that behavior. If it was then the producers of “Dexter” and “The Sopranos” would have a lot more to answer for than Murdoch.

Krater

It’s terrible to think that everything in this article is completely wrong when it comes to copyright law.

First, singing a song is not copying it. Using the original recording of the song is, or copying it outright and distributing it – that’s what people get sued for. When a song is sung in a bar by a band or played for karaoke, that location has paid a blanket royalty fee to one or more licensing groups.

The same goes for the show. They are singing the songs and not just playing them for everyone to hear. Either they’ve paid the license or just made deals with the record companies to not have to pay anything since what they sing results in those songs being sold.

As for mashups, you don’t have to pay a dime if it is an original you came up with yourself. Since a mashup is considered a ‘transformative work’ it’s considered an original and now the creator of the mashup has a copyright on it.

Remember the famous Obama image from the campaign (by Shepard Fairey)? There was a copyright stink about him using an AP photo as the base of his image. What he painted was completely transformative – he ‘transformed’ the image into a new medium – but he got into trouble by destroying evidence about which picture he used. He’ll probably settle the case just to get it off his back but only because he ran afoul of the law. His work is not a violation of copyright – it’s well into the realm fair use.

That said, I’m not sure how I even got to this article since I despise that show. What’s worse is that they sell their renditions of those songs and are very successful at it. Why would you buy their versions when they are exact duplicates of the originals? It’s not like it’s American Idol where there is some derivation of the song, sung differently or with a different arrangement. In the future the people who bought those songs and albums will regret it.

BeOfService

We ARE talking about FOX here, the one with the “Fair and Balanced” news organization… This is the network that promotes its family values agenda with classy shows like Family Guy, COPS, Dollhouse, and the worst reality show ever on TV, Married By America (Google it). Murdoch and Fox seem to have no integrity what so ever, treat their audience with disdain, and I assume would sell their soul to the Devil for a farthing.

Anonymous

Just to note that while “in class” performances are explicitly non-infringing under section 110, performances during competitions constitute public performances and are probably NOT protected.

Gutierrez

Glee and Law & Order coming together: Sweeps week gold!

sdmikev

Thank you for posting this. The idea that HS children would have to pay someone to put on a show is obscene.
The so-called “anti-piracy” people are out of control, really. There were a couple fellas that post on You Tube and do lessons for guitar players. They had all of their video links pulled a couple years ago because they were teaching how to play specific songs. As any musician can tell you, any pop song can be figured out in about 5 seconds, but as one is learning it’s nice to have teachers that use pop and rock songs for teaching. And showing how to play them correctly. I SORT of get the issue here because they are paid to teach in their actual business, but still. Give me a fucking break.
The other day I paid my guitar teacher to show me how to play some Jimmy Page stuff correctly. Guess he’s breaking the law..

Anonymous

Typical Murdoch hypocrisy. As long as something is making him profits, he is more than willing to drop all principles and sell his grandmother down the river. Dick.

Daedalus

In an organization as huge as Rupert Murdoch’s media empire, I’m sure the right hand doesn’t know what the left hand is doing 90% of the time. Murdoch doesn’t know who Glenn Beck is. Murdoch doesn’t watch Glee. The lawyers he’s employing likewise are ignorant of the things they’re defending half the time.

That sort of cognitive dissonance doesn’t surprise me.

BUT, I think Glee’s popularity is a perfect opportunity to talk culturally about copyright, and I kind of hope the writers do at some point. I wouldn’t exactly expect it to be pro-reform, in the end, but Glee has surprised me many times before.

And it is a fun bit of TV, Cory! Totally worth watching if you spot the DVD’s or get the chance to watch Hulu. Pretty positive messages, largely delivered without over-simplification (though the characters can be rather stereotypical at times, that’s largely forgiven).

IronEdithKidd

You know, I’d like to believe that Murdoch doesn’t know who GB is, but given that the show is losing sponsors by the day (and rumored to be losing money for the whole network), I just can’t believe that Murdoch didn’t personally hire Beck.

Anonymous

It’s Fox…did you expect anything less than hypocrisy from them?

arkizzle / Moderator

It’s terrible to think that everything in this article is completely wrong when it comes to copyright law.

Now THIS is how I like a comment to start.. because it means we all get to pick it apart. OK, here goes..

First, singing a song is not copying it.

Public performance is covered under copyright.

Using the original recording of the song is, or copying it outright and distributing it – that’s what people get sued for.

Or for violating Public Performance /covers licensing. See below.

When a song is sung in a bar by a band or played for karaoke, that location has paid a blanket royalty fee to one or more licensing groups.

Bruce Springsteen sues Irish pub over cover band

Cover Band Destroys Restaurant

Cover band lawsuit settled for $40,000

(all unrelated)

The same goes for the show. They are singing the songs and not just playing them for everyone to hear. Either they’ve paid the license or just made deals with the record companies to not have to pay anything since what they sing results in those songs being sold.

Not ON the show. IN the show. If you missed this point, you may have missed the point of the whole article.

The point is not that Glee did-or-didn’t license the music for broadcast, it’s the gay abandon in which the characters engage in the type of activities we are warned against by Studios.

As for mashups, you don’t have to pay a dime if it is an original you came up with yourself. Since a mashup is considered a ‘transformative work’ it’s considered an original and now the creator of the mashup has a copyright on it.

OK, I see where you are going with this, but unfortunately it isn’t that simple. Although the term “transformative work” can apply to mashups, there is no 1+1=2 test for that status. It must be deliberated and allowed. Beyond the specificity of mashups, all the sampling of music in hip hop and electronic music was transformative, but people got sued plenty.

And how do the phrases “mashup” and “original you came up with yourself” fit together?

Krater

arkizzle, kudos on picking apart one sentence and ignoring the next sentence which clarifies the previous. That’s internet bickering at it’s best.

Not sure why you included links to people who didn’t pay their royalties and were sued, that only strengthens my argument. In the original article the Girl Scout example supports what I was saying as well – pay your royalties, it’s not a problem. I think we can assume that if a Glee group (like the one IN the show, not just ON the show) is going to perform songs publicly they have paid the royalties in some form. I do apologize if I mixed the IN/ON within my previous post, it’s an easy mistake to make.

Mashups CAN BE transformative works. You are right that 1+1=2 is not necessarily true but it’s also not expressly false. People got sued in hip-hop because they used the exact sample, not their own recording of something similar – that’s not transformative. However, 2 Live Crew got sued by Roy Orbison (the label he was owned by) but it was thrown out because 2 Live Crew had parody rights. Weird Al asks permission but doesn’t have to because of fair use. The Madonna video could’ve been construed as parody and therefore not infringment. The Shepard Fairey image of Obama is clearly a duplicate of the original but transformed – thus fair use.

My point was that the original article was a flamebait piece using the popularity of Glee to assert anti-copyright propaganda. It twisted copyright law to make a point, even though the Glee works are possibly within fair use. Yes, I know you can’t legally make an exact copy of the ‘Vogue’ video and distribute it. But you certainly can parody it. Just because a record label sues someone who makes a mashup doesn’t mean the creator has ran afoul of copyright fair use, the record company just has more money and lawyers than the common youtube user.

Maybe the mashups that are on Glee aren’t altered enough to be considered ‘transformative’ but that doesn’t mean all mashups aren’t – which was the blanket assumption that the article expressed. Also, the Glee mashups don’t actually use the original recordings (just lyrics and melody) so we are into an even grayer area.

It’s also silly to assume Glee needs to address copyright issues when it’s clearly fiction and, most importantly, A TV SHOW. In TV land, legal rules don’t apply, just like biological (True Blood), medical (Grey’s Anatomy), physical (Lost), or temporal (Flash Forward) rules.

XerxesQados

In the original article the Girl Scout example supports what I was saying as well – pay your royalties, it’s not a problem.

Actually, that is a problem. You are suggesting that Girl Scouts at summer camp pay royalties to record companies in order to sing a song around the campfire.

I believe the legal term for that is “fucking ludicrous.”

rebdav

Copyright is a legal monopoly granted by the King or the standing Government. At this point the industry associations have colluded and bent our laws to the point that rather than being protected should be attacked with anti-trust if not ant-racketeering lawsuits. The public looses value instead of the hoped for incentive to create new content for the eventual consumption in the public domain.

There is no natural right to copyright on creative works, it is a slight perversion of nature that was hoped to enrich the public when limited or enrich the monarchy with a cut of the royalties when unlimited.

AdamUndefined

It would be great if CreativeCommons, EFF, etc. put together a commercial that summed up this story and had it air during episodes of Glee. It would probably add to the numbers of people wanting reasonable and fair copyright laws.

waaronw

That’s a great idea, AdamUndefined, except that Fox, and pretty much all of the other large media outlets, would refuse to air the ad outright – and there is no recourse. Big media is a great way to get information out there, provided you can pay and your message doesn’t place at risk the prevailing business models or offend other advertisers.

RyanMcFitz

@AdamUndefined, hear hear! Great idea!

Kragshot

It’s Fox…is anyone here surprised by their blatant hypocrisy? If so, then shame on you. :)

The only two reasons I watch the show are:

1) It’s damned entertaining.

2) It’s not SciFi; I refuse to watch any science fiction on Fox…never again. That also goes for action, especially after what they did to “Drive.”

But as a DJ, I am rather insulted at the fact that they preach this stuff on the show, but are real quick to arrest and fine DJs who make mixtapes, and calling said mixes “copyright infringement.”

Trolls under the bridge…somebody should put ‘em down.

octopod

hmm. this is Fox, more plausible would be a freetard character who drones on about copyright and sticking it to the man while installing lunix on the school computers could be good comedy, perhaps microsoft or the riaa would sponsor the show. otoh, they tend to be old white middle class males, which might be a bit creepy, otoh, they could introduce a large stuffed bear as the school mascot.

johntheobscure

Why doesn’t Ms. Mulligan blog about the horrible, restrictive, anti-mash-up, monopolistic copyright policy at her own institution, known as the anti-plagiarism policy? She is wasting so much time writing original material when she could simply pretend to be another, more original commentator by republishing their words. That would make her a true culture hero and strike a blow against those fuddy-duddy believers in “academic honesty.” Information wants to be free! Because people want to be cheap and lazy!

Cory Doctorow

You’re right, people certainly want to be lazy. Especially message-board commenters who draw intellectually lazy parallels between passing off someone else’s work as your own and making art by combining other art in a tradition that’s as old as the authors of Genesis using Babylonian mythos as their starting point.

“Information wants to be free?” Apparently you haven’t gotten the memo.

Anonymous

Obviously the series is going to end like Seinfeld, with all of the characters in prison!

Anonymous

Arkizzle: I agree with what you say, but I have to emphasize that being “transformative” DOESN’T imply that something isn’t a “derivative” work that may need permission from the original rightholder. Rather a “transformative” work is not a “slavish copy,” and therefore is ALSO entitled to copyright protection.

MBelinkie

Let me play Devil’s Advocate here. Has any individual ever gotten fined for posting something on YouTube? As far as I know, the video just gets taken down, period. Sue isn’t going to be fined hundreds of thousands of dollars. At worst, she gets her account suspended.

It seems like this article is being purposefully misleading about the real-world consequences of doing what they do in the show.

Cory Doctorow

You mean, apart from the $1 billion lawsuit Viacom brought against YouTube?

Anonymous

This is interesting, but in most school systems they tend to pay a blanket license for ASCAP, BMI, and SESAC that would cover the school, and such, the Glee Club for any wrong doings, these instances (except for the cheerleading coach making a music video) would be for educational purposes and they are usually exempt, no?

heres_the_thing

I think another interesting question would be what would NewsCorp/Fox do if someone else took the songs or imagery presented in an episode of Glee and either reproduced them (as in the case with “Vogue”) or prepared a derivative work (as with Glee’s extensive use of MashUps)?

Would NewsCorp think they’re justified in taking action against a group that was doing exactly what the kids on Glee were doing?

What would be NewsCorp’s argument? What would be the inevitable meta-argument? What would be the predicted and actual outcome?

Anonymous

That is brilliant! True performance art right there–actually do what they’re PRETENDING to do as an illustration of the paradox they themselves are setting up!

So, who’s actually gonna do that, though? Anyone. . .?

Anonymous

Quote: In an organization as huge as Rupert Murdoch’s media empire, I’m sure the right hand doesn’t know what the left hand is doing 90% of the time

The right hand remains in the dark about the left hand’s actions as long as money is being made. Selective ignorance, ftw. :)