• Glee-ful Evolutions in Copyright and Distribution
  • October 6, 2010 | Author: Rachel A. Valadez
  • Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
  • They say the first step to recovery from addiction is to admit that you have a problem. Well... my name is Rachel Valadez, and... I’m a Gleek.

    The hideousness of that term aside, the show has been a favorite of mind since it debuted in May 2009, enjoying a hallowed status as the one show a week for which I regularly give my DVR a rest and (gasp!) watch live (simultaneously reintroducing me to the exhilaration of trying to get a glass of wine and a snack during a single commercial break). But this post isn’t about trying to convince you that Glee is so much more than re-imagined karaoke music videos (it is), or that a show where the characters spontaneously burst into song is capable of actual character development and witty, self-aware humor (check and check). Instead, I thought I’d use my first of twelve steps to see what practical, entertainment law related lessons I could Glee-n (sorry, I get one) from this pop-culture juggernaut. [Ed. note: groan.]

    As it turns out, Glee has some important lessons for studios, record labels and artists on how to effectively generate value from their copyrighted material in an era of Internet piracy and elusive commoditization. With three number one records, up to 20 out of Billboard’s top 100 downloaded songs at any given time (currently, 5 out of the top 10 on iTunes), and still-climbing ratings (last week’s Britney Spears-themed episode hit a series high with 13.3 million viewers), perhaps it’s time industry players followed the lead of the McKinley High glee clubbers, pulled out those spiral-bound notebooks, and took some notes.

    Glee has embraced a “pie-growing” approach to copyright ownership and music/TV licensing, making the old days of copyright owners rushing to the courthouse whenever portions of copyrighted sound recordings and/or compositions were incorporated into derivative “mash-ups” (a song combining one or more previously released recordings) or televisions shows seem positively medieval. Glee makes frequent use of mash-ups (the title of an early episode in the first season) and incorporates multiple Glee clubber covers of popular (and not so popular — ahem — Run Joey Run? — really?) music into every single episode. But, rather than facing litigation over these uses — like the widely written about 2004 Grey Album dispute concerning Danger Mouse’s LP-length mash-up of Jay-Z’s Black Album and the Beatles’ White Album, or the more recent suit over Fox’s Family Guy’s allegedly infringing use of When You Wish Upon a Star from Disney’s Pinocchio — the Glee people are having to beat back recording artists with a gold record-shaped stick because so many are clamoring to have their music featured on the show.

    Think about it: having a song featured on Glee means guaranteed exposure to millions of cash-rich tweens and litigation associates. And that kind of exposure has helped line the pockets of the Glee folks, older artists looking for a new audience, and new artists alike. For example, when Glee’s pilot showcased Journey’s rock ballad, "Don’t Stop Believin'", not only did the Glee version debut at No. 4 on the Billboard Hot 100 chart, but the original Journey version also saw a 48% increase in downloads that week. The Glee model shows that the old, rabidly protectionist mentality of copyright owners may not be the best way to make full use of their rights, regardless whether the goal is profit or people actually hearing their music. After all, if Coldplay (one of two known artists, along with Bryan Adams, to have refused initial requests to feature their music on the show) had allowed Glee to use "Viva La Vida" in the spot that Journey’s "Don’t Stop" ultimately filled (as the show's writers had originally intended), it would be Coldplay, not Journey, enjoying the extra cash from that 48% bump in downloads (apparently Coldplay learned their lesson since they’ve now given Glee full use of their catalogue).

    Glee is also applying the “more is more” mentality to its own distribution, permitting consumer uses of its music and television content. With so many tech savvy fans constantly combing the web for musical and storyline sneak peaks from the show, the Glee people might well have adopted the approach of those behind this year’s best picture Oscar winner, The Hurt Locker, and begun filing anti-piracy lawsuits left and right whenever a show or song clip leaked onto the web. But, rather than engaging in slavish protectionism, those behind Glee have re-purposed arguable fan piracy as free advertising for the show. Essentially, everyone involved with Glee — creators, network, and musicians alike — has made judicious use of their rights under copyright law, using their copyright rights to find profitable friends rather than to engage in costly hunts for enemies.

    Of course, not everyone agrees with this approach, and Glee is sometimes criticized for how much unaired content it lets leak and/or stay on the web prior to an episode’s release. For example, with its record-breaking Britney/Brittany episode, the show’s creators leaked 30-second clips of all the singles over a week before the episode aired, and full versions of the songs were available on the web several days before the initial air date (not to mention the multiple “sneak peak” clips of scenes from the show that were in circulation). So far, neither Glee nor Spears is talking lawsuit. Maybe they’re both too busy counting their cash and basking in the respective glows of series-record ratings and renewed cultural relevance. If that’s what being a Gleek gets you, I may just succumb to my vices.