In the latest episode of the hit Fox show Glee, entitled “Original Song,” the high school glee club, “New Directions,” prepares to perform the track “Sing” by My Chemical Romance in a regional competition. Out of nowhere, My Chemical Romance sends a cease and desist letter to the kids forbidding them from using the song. Although it later turns out that the letter was forged by the evil Sue Sylvester, the gang is forced to abandon their plans and write an original song to perform at the last minute. They work with diligence and passion, and miraculously and brilliantly compose the perfect song just in time to win the big competition. Phew!
Nice premise. But could My Chemical Romance really prevent a bunch of high school kids from performing “Sing”? Is there no protection for these youngsters?
The most common impulse in these situations is to turn to the fair use doctrine. The performance of “Sing” appears at first glance to be protected by the doctrine, which directs a court to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” However, one can imagine that the other fair use factors of the notoriously fuzzy doctrine (the nature of the copyrighted work, the amount and substantiality of the portion used and the effect on the market) might cut the other way, depending on the circumstances. Also, the copyright office has made it clear that, irrespective of any public perception to the contrary, educational use does not automatically equal fair use, especially where an entire song is used.
But fair use isn’t the only exemption to copyright infringement. The Copyright Act’s “Exemption of certain performances and displays,” 17 USC § 110(4), provides that the live performance of a nondramatic musical work, in which the performers and organizers are not compensated, is not infringement if (a) there is no admission charge or (b) even if there is an admission charge and as long as the copyright holder does not object in writing, the profits from the performance are directed exclusively to educational, religious or charitable purposes.
There is precious little case law concerning 17 USC § 110(4), and no published cases about its application in the educational context. It is therefore not clear whether the New Directions kids would be barred from the protection of this exemption due to the fact that their teacher and other “organizers” of the competition might be compensated for their time. Putting that issue aside, however, if the fictional competition did not charge an entrance fee, it appears that My Chemical Romance would have been totally out of luck even if they objected, and New Directions could have stuck with their original plan. All that work for nothing!