In a recent guest post on the Balkinization blog, Christina Mulligan, described copyright law as the elephant in the middle of the Glee club:
The fictional high school chorus at the center of Fox’s Glee has a huge problem — 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?
Mulligan is quite right, of course. The TV show Glee makes no reference whatsoever to the complex copyright issues that would beset any real life Glee club. Indeed, if Glee actually highlighted some of these issues, it would go a long to convincing the public that real copyright reform is in fact needed. Most of the public simply wouldn't even begin to understand how restrictive copyright law can be, and how ruthlessly the entertainment industry will be at times in enforcing their legal rights.
But there is another perspective to copyright and Glee that Mulligan doesn't write about; namely that Glee represents a new business model for the entertainment industry. In a post on Salon, Andrew Leonard explains:
Mulligan is missing an essential point. "Glee" is itself an example of a new business model for generating revenue from popular music in an era where old business models, based on now-unenforceable copyright laws, have crumbled under the pressures of the digital era.
Glee is a music business revenue machine. The cast spawned 25 Billboard top 100 singles in 2009. According to an Advertising Age story, published in February, "the show has spawned more than 4.2 million downloads of songs featured in its episodes, as well as two gold albums."
"Glee" produces its own music, which can then be sold for revenue. Twentieth Century Fox and the record label that distributes and markets the music, Sony Music's Columbia, share in the revenue and the studio puts the money back into the cost of producing the show at present.
"Glee," the show, is an example of how the entertainment industry will find ways to survive in an environment in which the traditional enforcement of copyright laws has become, for all practical purposes, impossible. Spend a few minutes on YouTube and you can find a practically infinite number of glee clubs performing copyrighted tunes. If anything, the success of "Glee" is feeding an amateur frenzy of performance, even as it mints money from its own performances.
We're going to see more such hybrid beasties, as "Glee's" model gets copied, or tweaked or ripped off by imitators. And I'm betting that in the not too distant future, we'll look back at those crazy days of the early 21st century, when the producers of entertainment actually attempted to criminalize the behavior of those most likely to consume their product, as wackier and more unrealistic than anything that ever happened on the show "Glee."
Read more here. Like Mulligan, Leonard is also quite right. But I also think he paints a far too optimistic picture. First, I'm not sure that the success of Glee will be easily replicated in such a manner that it will allow the entertainment industry to survive. Second, I don't think there is any evidence to support his assertion that the entertainment industry has acknowledged that, as he puts it, "the traditional enforcement of copyright laws has become, for all practical purposes, impossible". While I admire Leonard's optimism, I do not think his perspective is enough to negate the very real need for copyright reform.
(Finally, if you are an Australian teacher reading this post and you are suddenly spooked out by the potential copyright issues surrounding your use of music or other copyrighted materials in your classroom, the Australian Copyright Council has some very good facts sheets for educators that explain the law and the relevant exceptions and licenses that may be relevant if you want to set up your Glee style club at your school.)