Very Little "Glee" in Copyright
The season finale of Glee was last week and my girlfriend relives the episode on Hulu about every other night (I am just an innocent bystander “forced to watch”). If you haven’t seen it, Glee is a show about a ragtag group of kids who come together defying all odds (and social barriers) to compete in state glee club competitions. Although the principal of the school constantly threatens to close down the club because of budget cuts (and this is an issue in every episode), the term Copyright License never enters the equation. Rightly so, as copyright issues never seem to bring the same audience as issues about teen pregnancy and high school relationships. However, as an IP attorney I can’t help but think about what consequences this tiny Ohio school would face if the catalogue of songs used in the show were performed by an actual school.
A wonderful blog post on this issue was written by Christina Mulligan, in Copyright: The Elephant In The Middle of the Glee Club. She wrote,
“In onerecent 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.”
These issues could sometimes be resolved by certain license agreement, such as a license acquired from TheAmerican Society of Composers, Authors and Publishers (ASCAP). ASCAP is a company servicing creators of copyrightable works (songs, lyrics, compositions, etc.) by licensing out the works of these artists to the rest of us. A publisher of work, such as a school glee club would approach ASCAP to obtain a license to perform or play music from the ASCAP library of collected works. ASCAP is one of the largest licensing houses in the country and licenses the rights to thousands of songs. However, there are several rights available one can license when trying to use/perform a song, such as Adaptation, Recording, Reproduction, and Public Performance rights. These rights can be licensed individually or all together. According to Peter Jansson of Janssongs in an interview by The G-Man in the “More Music for Your Money – The Cold Hard Facts about License,” rights for certain songs can range from “anywhere between $1.00 and $250,000 (U.S.) for each one."
So a word to the wise, if there are any other Will Schusters out there, you might want to check your playlist and school copyright license before doing any trying to replicate any Madonna songs.
Now - I always thought (obviously mistakenly) that if you were using something for "educational" purposes - you got around some of the copyright restrictions. I remember in high-school, the drama club would go to drama competitions and use excerpts of plays, etc., but no one ever asked or worried about copyright. Is there a difference between that scenario and the glee club scenario? Is it because the ***performance*** is copyrighted? Copyright is deceptively complex.
You're right. Copyright is deceptively complex. There is an educational use exemption to copyright under fair use, but it is limited and very tricky. Courts will look at four factors to determine fair use:
1) the purpose and character of your use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market
Entire treatises can be written (and have been)on these four factors because they are so open to different interpretations. Using only a portion of the drama for performances would help with a finding of fair use, but it is not a given.
To answer your performance question: the text of the drama is what would be copyrighted, and with that comes the right of performance (or in this case, the right to limit unauthorized performance).
Amber,
What plays where you taking excerpts from? Shakespeare or something more modern? As you might know, not all plays carry the protection of copyright laws. There is a time limit on Copyrights (70 years after the death of the artist), and some of those plays excerpts might have lost their copyright protection.
Additionally, as Luke points out there are 4 factors the courts will take into account when determining fair use. Every case is different, and courts are not entirely consistent on their interpretations of what is or is not fair use. However, factors such as how long the excerpt was and what percentage of the play the excerpt happened to be, will help dictate fair use.
In Glee, they use entire songs or do mash ups of substantial amounts of different songs. In comparison, if your school was to put on a Disney play, as opposed to the excerpts, and perform the Lion King they would need permission/license to put that play on.
Additionally, in Glee there are large audiences, who I can only imagined paid for tickets to the show. These factors go more towards making a commercial endeavor as opposed to educational purposes.
Another difference between your excerpts and the glee competitions would be the market. It is more likely that full performances of songs (singing them on stage for an audience) might compete on some level with concerts of the same songs. While going to see excerpts from plays would not rival the theater market nearly as much.
One last note, it might be possible that the association that put on the competition might have held a license of some sort and it covered those excerpts (just to be safe).
In any case, not having all the facts I cannot determine why there were no Copyright licenses involved, but the glee competition and drama competition are quite different.