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

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

Tue, Jun 17th 2014 10:02am — Tim Cushing

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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Filed Under: copyright, parody, plays, quisney project, threats
Companies: disney, evergreen state college

29 Comments

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jameshogg (profile), 17 Jun 2014 @ 10:08am

Prior restraint at its finest.
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Anonymous Coward, 17 Jun 2014 @ 10:12am

I call bullshit
Someone is just homophobic and needed an excuse to squash this thing.
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Paul Brinker, 17 Jun 2014 @ 10:12am

Let just ask Disney
They could just ask Disney for permission...

... of course this completely destroys the entire point of the criticism to ask permission first.
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Michael, 17 Jun 2014 @ 10:14am

It sounds like an excuse to keep a trans-gender Cinderella off of the stage.

I don't think they are worried about copyright, I think it is much more likely that they went to the State's Attorney and asked how they could keep a production like this off of their campus without getting sued.
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Anonymous Coward, 17 Jun 2014 @ 10:18am

Piece of Junk
I think it was probably a piece of junk which wasn't particularly original in its parody. How many times can Disney be parodied?

They were cutting their loses and saving the reputations of their staff and student body.
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sorrykb (profile), 17 Jun 2014 @ 10:24am

Re: I call bullshit
Someone is just homophobic and needed an excuse to squash this thing.
It's possible, but given The Evergreen State College's reputation (as one of the most LGBT-friendly colleges), I'd say it's more likely fear of Disney's lawyers.
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TimothyAWiseman (profile), 17 Jun 2014 @ 10:28am

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.
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hij (profile), 17 Jun 2014 @ 10:29am

money changing hands
Even if there is no case against the college if Disney were to decide to send in the drones that would require a good bit of money to fend them off. It is likely money the college does not have. Going to "a state attorney" gives them cover to just avoid the situation. Duck and cover to avoid any detonations.
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Coyne Tibbets (profile), 17 Jun 2014 @ 10:45am

Terror
But, if people change their lawful activities because of fear of Disney lawsuit, wouldn't that make Disney lawsuits a form of terrorism?
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Michael, 17 Jun 2014 @ 10:48am

Re: Terror
We prefer to think of Disney as a "freedom fighter"
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Anonymous Coward, 17 Jun 2014 @ 11:05am

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.
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Doug (profile), 17 Jun 2014 @ 11:11am

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.
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Jay (profile), 17 Jun 2014 @ 11:16am

Let it go! Let it go!
Before Disney sues us all!
Let it go! Let it go!
Turn away, just screw you all!
Here we stand, running from the fight!
Let lawsuits rage on!
The Mouse will not bother us anyway.
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Gyffes, 17 Jun 2014 @ 11:20am

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.
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Doug (profile), 17 Jun 2014 @ 11:26am

Re: Re: The School's Fear Was Reasonable
Whoops. I should have previewed my comment... I used formatting that ended up with some text getting stripped out. It should have read:

Paraphrasing: "the right solution is [something long-term and difficult] not [something easy and immediate]".
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Doug (profile), 17 Jun 2014 @ 11:35am

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.
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Mouse Law, 17 Jun 2014 @ 11:35am

Re:
Expect a summons shortly.
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Anonymous Coward, 17 Jun 2014 @ 11:52am

Evergreen has atrocious faculty and constantly overspends (and expects everybody else to pick up the bill).
Take those two things into account (no money and dumbasses), yeah it makes sense they'd do this.
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Jason Still (profile), 17 Jun 2014 @ 11:56am

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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Personanongrata, 17 Jun 2014 @ 12:09pm

How are Evergreen State College and cheap lawn furniture alike?

They both fold very easily.
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jupiterkansas (profile), 17 Jun 2014 @ 12:12pm

At least the students are getting a real education in how the world works.
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Anonymous Coward, 17 Jun 2014 @ 3:34pm

The play sounds gross anyway.
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Anonymous, 17 Jun 2014 @ 3:46pm

Copyright law is gay.
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JMT (profile), 17 Jun 2014 @ 5:34pm

Re: Low hanging PR fruit
Excellent idea, but...

"Include a letter giving them your permission to put on the show."

Not 'permission', that's not required! Give them encouragement, and an assurance no lawyers will be involved.
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PaulT (profile), 18 Jun 2014 @ 12:18am

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?
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PaulT (profile), 18 Jun 2014 @ 12:40am

Re: The School's Fear Was Reasonable
"In short, we should be reconsidering our current copyright laws rather than blaming this school."

Why not do both?
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nasch (profile), 18 Jun 2014 @ 9:17am

Re: Re: Low hanging PR fruit
Not 'permission', that's not required! Give them encouragement, and an assurance no lawyers will be involved.

But as Jason said, if they give permission, that reinforces the idea that permission was necessary, which benefits Disney.
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nasch (profile), 18 Jun 2014 @ 9:19am

Gay song
I would love to see someone dub over a Disney song, Bad Lip-Reading style, a song about being gay.
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Anonymous, 18 Jun 2014 @ 2:52pm

Remember "Pinocchio"?
"Hi-diddle-de-day, an actor's life is gay".
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