Reply To: JoCo in the Media

[paulandstorm]

PART II

…Or is it “fair use”?  It can also be argued (and has been above) that Jonathan’s work can be considered a parody, and as such qualify as “fair use” of the original work; and therefore doesn’t require permission from the copyright owner, and said new work is protected by copyright (specifically, the elements added to/altered from the original work are protected).

Fair use is itself sometimes murky waters; but four factors are generally used by the courts in determining if a work qualifies as fair use. From 17 USC § 107 (parenthetical comments mine):

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (especially if the new work is “transformative” rather than merely just “derivative”)
2. the nature of the copyrighted work; (complicated, but things like: was the original work intended for private vs. public purposes)
3.  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (how much of the original work was used in the new work) and
4. the effect of the use upon the potential market for or value of the copyrighted work. (the extent to which the new work impacts the original owner’s ability to exploit their original work)

The courts have generally been pretty lenient overall as to what constitutes “fair use;” so this is an approach Jonathan might take; but it’s certainly not simple, nor guaranteed.

So as you see, there’s a LOT of factors at play here, many of them interdependent, and none very cut and dried. And again, none of this is to say that what Fox has done isn’t shitty and uncool–it absolutely is. But seeing as they’ve done same thing this before to other artists, I have to believe that “the lawyers” on Glee’s end believe they’re adequately covered regarding “stealing” the arrangement. Given an organization this large and stakes this high, NOTHING of this nature gets done without The Lawyers signing off on it.

Of course, the use of Jonathan’s original recording is an entirely separate matter. While there’s no way of knowing for sure, and it’s not really appropriate to speculate, MY PERSONAL OPINION is that someone in the Glee music department was either very lazy or just screwed up; I cannot believe that a show with this level of visibility would intentionally use someone else’s original recording on purpose, because it’s too easy to get caught and too easy to prove. And whatever one may think of the show, I’ve never seen nor heard of any other instance of them flat-out using someone else’s recording without permission. 

Wow; that was a lot of words. But I find this whole subject fascinating, not to mention more than a little relevant to my own career.

P