points us to an interesting writeup by Christina Mulligan at the Yale Law School's Information Society Project, noting the somewhat mixed messages Hollywood gives people on derivative creativity
. Specifically, she talks about the TV show Glee
, which I have to confess to never having watched (nor even knowing anything about the show other than that it exists, and people talk about it). Apparently, however, it's about a fictional high school chorus, and while the show takes on all sorts of meaty social issues, it also displays regular acts of remixing and other forms of derivative works, many of which might get folks sued in the real world, but which never mention copyright issues:
...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.
So here we are with a hit TV program, showing off how kids are doing all sorts of almost certainly infringing derivative works... at the same time we're told (by the same Hollywood folks) that such works are illegal. And, this isn't some random "well, they could sue but they don't" situation:
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.
As the article notes, these mixed messages may be confusing, but in the end, most people know which side actually makes sense, and it's not the side that the law is on right now:
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?
It's a good post and well worth reading the whole thing. But what I find interesting is that Mulligan doesn't even touch on the fact that these mixed messages are coming from the same place. The same folks who produce, distribute and broadcast Glee are the folks who insist copyright is property and that the current laws are just and good. But, even they must know, conceptually, that there's a mismatch between what the law says today and what people actually do.