College Pulls Support For Students' Parodic Musical Because It *Imagines* Disney Might Sue It

from the wielding-IP-for-fear-and-profit dept

One of the “benefits” of being a notorious IP thug is that people are willing to do most of your work for you and head off any conceivable infringement before it even happens.

Yes, we’re talking about Disney.

A student theatrical troupe at Evergreen College just had all support from the school pulled, along with use of its facilities, for creating a musical that dared to take a few hummable swings at Disney’s body of work.

Eight students there spent the spring quarter writing, rehearsing, and preparing to perform publicly an original musical theater production entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.” Informed by queer theory, the work is a critical and political commentary on heterosexuality norms in American society. Professors were involved in supervising and approving the project, which was scheduled to be performed this weekend in campus facilities…

The students’ musical production apparently incorporates several Disney songs, which the students use to criticize and parody Disney as – in their view – a company that perpetuates gender norms through its songs and movies.

So far, so good. But before it could get off the ground and without anyone but the administration scaring the hell out of itself with visions of white-gloved lawyers delivering complaints to federal courthouses, the school informed the troupe that, yes, it could put on a show, but there was no way Evergreen College would assist in that endeavor.

Evergreen State College’s administration was supportive of the project initially. However, after consulting with a state attorney, the administration apparently changed its tune, writing the students in late May to advise them that the musical could not be performed on college property in its present form. Their concern? Potential secondary liability for copyright infringement.

The theater troupe had consulted its own legal representation as well — the Washington Lawyers for the Arts — and arrived at a completely different set of conclusions. Here’s just part of its resolution sent to Evergreen’s administrators.

Whereas the U.S. Supreme Court concluded in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994) that 2 Live Crew’s song “Pretty Woman” did not infringe Acuff-Rose’s copyright of “Oh Pretty Woman” and did constitute fair use because the parody commented on and substantially transformed the meaning of the original;

Whereas fair use is determined on a case-by-case basis;

Whereas in making determinations of fair use, the relevant provision of federal copyright law (17 U.S.C. §107) instructs us to consider:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and;
the effect of the use upon the potential market for or value of the copyrighted work.

Whereas fair use in educational settings is wider in scope than in commercial settings such as that addressed in Campbell v. Acuff-Rose;

Whereas the students who wrote the script, as well as the faculty who reviewed it, concur that in its use of parody “The Quisney Project presents: O.U.T.: Once Upon a Time” significantly alters the meaning of original melodies and lyrics, and offers critical commentary upon the original…

The musical would seem to be on solid ground, or at least as solid as fair use can ever be. But Evergreen, despite never having heard from the feared rights holder, much less consulted with anyone specializing in IP law (the State Attorney? Really?), stood firm, distancing itself as far as possible from members of its student body.

We therefore insist that the performance cannot go forward as it has been planned to date. There are alternatives to a public, on-campus performance of the script as we have it. These have been discussed with most of you, but none, so far as we know, adopted. We cannot allow college staff time or resources of any kind to be dedicated to the performances planned for this week. This includes any recording, publication, or broadcast by college staff.

As we have stated consistently, our decision is determined solely by copyright concerns and should in no way be taken as a negative judgment on the artistic and academic merit of the play or on the work of the Quisney Project.

It may not be a negative judgement on the content, but it’s a very cowardly move. Backing down from actual legal threats is one thing. Scaring yourself into conceding before the battle lines are even drawn is just ridiculous. Disney’s thuggish rep precedes it and it’s getting compliance without even asking.

As the WLA post shows, the show’s songs and content have substantial fair use protection built in. But if a college is willing to drop back and punt on first down just because it’s heard of Disney suing infringers, it sends the message that it’s unwilling to put up a fight to protect fair use in other academic arenas as well.

Evergreen should have thrown its support behind the program. Given the subject matter, any legal action taken by Disney would appear to be more motivated by stifling criticism than protecting IP rights. That would have been a lose-lose move and one it most likely would never have attempted. But now we’ll never know because Evergreen College surrendered preemptively.

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Companies: disney, evergreen state college

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Comments on “College Pulls Support For Students' Parodic Musical Because It *Imagines* Disney Might Sue It”

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PaulT (profile) says:

Re: Piece of Junk

“I think it was probably a piece of junk”

Evidence, or do you just make the most convenient assumptions to blame the victim?

“saving the reputations of their staff”

The staff nobody had heard of before, who are now being roundly criticised for doing this?

Which do you honestly think is going to damage the reputation of the school more – being shown to be willing to drop their students’ work at a moment’s notice because of a non-existent threat, or allowing them to put on a mediocre show of their own creation?

TimothyAWiseman (profile) says:

The School's Fear Was Reasonable

Reading only this article and not the opinion letters, I fear that those two opinions by the lawyers may not have been completely different. The college feared being sued as much as it feared losing that suit, and fair use is seen as an affirmative defense currently. Even a fair use ruling in your favor can be very expensive to acquire.

It may be a criticism of our current copyright laws and in particulr the strength of fair use that this situation arose, but in the current state of the law the college’s fear of being sued is reasonable. We may wish that a college would be prepared to accept that risk on behalf of its students to fight for their free speech, but a smaller college may not have the resources to do that.

In short, we should be reconsidering our current copyright laws rather than blaming this school.

Anonymous Coward says:

Re: The School's Fear Was Reasonable

The fear is reasonable, but a university should not be giving into fear related to lawful speech (even if there is an actual lawsuit). Compare this with how a Cambridge professor defended his student against a legal threat:

Second, you seem to think that we might censor a student?s thesis, which is lawful and already in the public domain, simply because a powerful interest finds it inconvenient. This shows a deep misconception of what universities are and how we work.

Doug says:

Re: The School's Fear Was Reasonable

“In short, we should be reconsidering our current copyright laws rather than blaming this school.”

Nope. We should do both. Practically speaking we should just do the latter. Your suggestion is hard to differentiate from a strawman a lobbyist (or shill) would use to seem responsive while ensuring the status quo.

Paraphrasing: “the right solution is not .”

The problem with that is that focusing people on the long-term and difficult thing is often just a way to put an issue on the back burner long enough that it’s no longer in the headlines.

Gyffes says:

While I agree

that their movies are as whitebread mainstream as possible, Disney itself has been a very gay-friendly company, with support for gay partners and spouses long before it was mandated by (some) states. I’m all for fair use, but it seems a bit meanspirited to pick on such a large and publicly bland company for not daring to be more Queer-friendly in its offerings.

Doug says:

Re: While I agree

Disney is to be commended for its gay-friendly policies, but that is orthogonal to criticism of the norms it depicts and perpetuates in its products. Disney’s products are part of our culture, independent of Disney as a company. Criticising our culture via criticism of products of that culture is entirely appropriate.

Disney’s own internal policies only add irony to the criticism.

Jason Still (profile) says:

Low hanging PR fruit

Disney could pull an ultra-pro PR move here if they wanted. Send them a check for some insignificant amount (in Disney terms) to help offset the production costs. Maybe like $1000, probably less than some Disney exec spends on their expense account in a day for “business lunch meetings”. Include a letter giving them your permission to put on the show. More importantly, in that letter include some wording like “we welcome criticism and the opportunity to improve” or “maybe some of these criticisms are valid, and we’ll be taking them into consideration”. Then, this is the important part (from a corporate perspective), do nothing.

Cost to the company is basically nothing. You gain some goodwill from some of the people who shared the same criticisms because now they believe you’re working on changing. They may even believe they see changes where there are none. You’ve also planted the idea (or perhaps, further implanted the idea) that people need to seek your permission to engage in fair-use usages of your company’s works.

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