By Cameela Ketheeswaran and Gene Goodsell, Special Counsel
The copyright issues in Glee are largely connected to the crux of the show’s popularity. The show is pumped with energy due to the mashups and renditions of classic hits like Elvis Presley’s ‘A Little Less Conversation’, Elton John’s ‘I’m Still Standing’ and Lady Gaga’s recent hit ‘You and I’. An opponent to Glee is Christina Mulligan, a fellow at the Information Society Project at Yale Law School, which claims that Glee does not adequately reflect the reality of how copyright infringement is dealt with in the U.S: 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). Mulligan also refers to a variety of instances where artists have gone after ‘amateurs’ particularly in the instance where the American Society of Composers and Authors (ASCAP) requested that members of the American Camping Association pay royalties for the songs they covered in Girls Scouts.
On the contrary, it must be asked, is this truly a reflection of reality or merely an idyllic enforcement of copyright law which is far from what actually happens? For example, the YouTube sensation Sophie Grace, whose video performance of Nicki Minaj’s ‘Super Bass’ went viral and landed them on Ellen Degeneres’ talk show, didn’t result in a phenomenal $150 000 fine but instead saw Nicki Minaj herself join the girls in a live performance on stage. Is this an example of one alternative response or is it the way of the future?
As social networks and sharing sites increase, amateur video footage, films and television sitcoms are benefiting from the change in approach by copyright holders – specifically musicians. The lack of legal action for those that pay homage to their inspirations, such as the kids on Glee, are reflecting the change in attitude. Is this shift away from the typical truculent responses by copyright holders a purely moralistic one or is it far more calculated than it appears? Without seeming cynical, one must agree with the latter. In fact, the decision to hold back on legal action even when copyright infringements fall outside the scope of fair use (ordinarily parodies and criticism or commentary), is a very progressive and perceptive one.
In reality, although Glee fails to mention ‘copyright issues’ the show has caught the attention of a technologically savvy generation, triggering thousands of legal downloads of the original songs featured on the show. It perhaps adds to the commercial value of songs that have been exiled into past eras, making them relevant to today’s musically uninformed youth.
For example as represented by Marketing Professional Brian Rice, when the Glee cast covered Madonna’s ‘Like a Prayer’, it generated sales of “87 000 digital downloads the day after it premiered.” Any shrewd copyright holder would grasp the marketing potential of a television show like Glee. Of course the show is issued synchronisation licenses from the artists’ publishers in order to reproduce the songs, the point however, is more whether the show distorts what music fans and creative musicians can use in regards to copyright works outside of fiction? If performing in class rooms, students are exempt from having to obtain music clearance of rights, or public performance licences.
To fall back on to the example of Sophia Grace, her viral video of Nicki Minaj’s hit ‘Super Bass’ today has over 36 million views – a massive achievement of marketing for Minaj, all sparked by a young fan. Sophia never paid for a licence or paid royalties to Minaj for the public performance of her song on YouTube, in fact Minaj paid for a shopping spree for the girls in order to encourage their love for music and education. Not to mention, ten-year-old Maria Aragon, who did a video cover of Lady Gaga’s ‘Born This Way’ which went viral. She was not sued but instead invited on stage with Gaga at her concert to perform a duet. This performance had millions of views just on YouTube and was covered in news around the globe. The response by Gaga was another example of an intelligent and successful marketing strategy which may have been a mere by-product of her more open minded approach to copyright infringement and fair use.
The one thing people should ask of the creators of Glee is perhaps to introduce into the narrative the issues of copyright and existing copyright laws, which would potentially prevent the Glee kids from performing any songs.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Gene Goodsell, Special Counsel:
Phone: 1300 725 105
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