Fox Lawyers C&D Buffy Fandom Musical

Ahh, copyright.  The fountain of creativity and artistic expression.  Unless, of course, you're a fan of someone else's copyrighted work and want to express that artistically by reenacting your favorite episode.

This Halloween weekend here in SF, a local non-profit theater group called CounterPULSE was sponsoring just such an occasion with a live-action version of the Buffy the Vampire Slayer musical episode "Once More With Feeling."  The show was being put on as a one-time gig and as a tribute to the fans and geeks that have been obsessed with the show during its sixseven-season run.  The idea was not to substitute the show for any purchase of a Buffy product, and if anything, it might have encouraged more people to rent or purchase the series on DVD.

 

But it was not to be.  Word of the musical got out on the 'net and soon enough, the legal department at Fox slammed the hammer down on CounterPULSE with a barrage of Cease-and-Desist letters and expensive legal threats.  Predictably, CounterPULSE quickly folded and canceled all the scheduled shows, despite the fact that the creative force behind Buffy (Joss Whedon) has said he had no objection to the performances.

So what does one make of this? Well, according to the doctrines of traditional copyright law, the copyright owner (here, Fox) has the exclusive right to control public performances of its works, including the musical episode.  But does this make sense? Is this the kind of copyright policy we want? Those are tougher questions.  Just as artists are an engine for creativity in our culture, so are fans.  An artist on their own can make a work of art, but only fans can make it mean something in our society.  Fans take art and translate it into culture.  They invest in it, obsess over it, share it, and spread it to others.  They turn it from an isolated item into a means of communication.  (For more on this, see danah's posts here and here where she breaks it down more eloquently).

But where is the recognition of this reality in copyright? Well, before the digital age, it was often in the idea that copyright was a public right and fandom was a private series of acts.  Copyright would control public distribution of works and fans would collect them and share them and discuss them in private.  More importantly, they would do so without making "copies" of them; instead, they would trade physical goods and have verbal conversations.  Some would make costumes or their own art based on the subject matter, but those were generally kept private or only exhibited at limited forums like Comic Cons.

Yet now, in the age of the Internet, online fandom has become massively popular.  There are huge communities of fans who are having millions of conversations about the copyrighted works they love.  Not only are many of these conversations happening in public on the Internet, but because they are conducted over networks with computers, they are had by making copies -- copies of the works, copies of clips and snips, and copies of images and sounds.

All these copies are potential copyright problems, just as the live-action Buffy musical was a potential copyright problem because it was public.  Yet copyright does not explicitly protect these parts of our culture the same way it protects the artists who create the original fandomed work.  There is, of course, the fair use doctrine in copyright law, but traditionally, it has not included fan-based works unless they were explicitly parodies, commentary, or criticism.  Perhaps the time has come that it should.  If we want copyright law to be a vibrant engine for fan creativity as well as artist creativity, fans must be treated as equal partners is cultural production and not just as passive consumers of "artistic" creations.

(via SFist)

Comments

[Joe Gratz]

I'm all for treating fans as partners in cultural production. I think fanfic is non-infringing. (I think this because characters should not be copyrightable, not just because it might be transformative fair use.) I think fan art and costumes are non-infringing.

But I think the Buffy production, though awesome, crossed the line. Take "Spamalot" -- it's a stage musical version of a movie, and it would obviously be infringing if not licensed. The only way to distinguish "Once More With Feeling" from "Spamalot" is that the CounterPULSE folks are a nonprofit and the production is put on by trufans. Even the 1909 Act, which deemed not-for-profit musical performances noninfringing, still brought the hammer down on not-for-profit dramatic presentations.

Would the world be a better place if companies like Fox gave permission for not-for-profit adaptations freely, or if the law was structured to allow Joss Wheedon to grant a license in this case? Absolutely. But I don't think counterPULSE should be able to escape infringement liability based on its transformativity when all they're doing is acting out a preexisting musical.

[Chris S]

I'm way too deep in things I don't completely understand with this comment, but I thought that mechanical licensing was specifically designed to cover this situation.

Unlike many copyright situtations in the digital age, this one appears to be a classic, time-worn situation. They aren't looking to change, adapt, or make derivative works (right?). They aren't even planning to record it. They are just planning to perform the work as it was written - like one artist performing a cover version of a previously performed work.

What don't I understand here?

[Aaron]

Joe,

The Rocky Horror Picture Show, which also belongs to Fox, has been re-enacted at great length for 30 years in theaters all over the world. The fact that this has occurred shows that the studio knows of both how to allow this to happen without weakening their copyright and that in allowing this sort of activity it keeps their product profitable.

Furthermore, re-enacting this episode of Buffy The Vampire Slayer is already becoming common place at certain conventions, such as Dragon*Con. (I witnessed it myself, it was rather impressive, and made me want to go home and do the same thing).

This is just another example of a big media company being ultra paranoid, and trying to control every aspect of this intellectual property. Yes, they created it, and this entitles them to certain things. However, millions of people have devoted years of their lives to viewing it, and that should entitle them to certain things as well.

[Auz]

I'm not a lawyer, but if, as I understand, the entire episode was in song, isn't anyone entitled to perform a cover version of the songs without needing Fox's permission at all?

[mike]

Buffy ran for seven seasons, not six as stated in the second paragraph.

[Brian Carnell]

Sorry to nitpick, but BTVS ran for 7 seasons.

[Patrick Nielsen Hayden]

Seven-season run.

[Dataghost]

It's odd that Fox would enforce theirshady idea of whatever copyright they feel that they have over the creative works of the actors and writers...It definitely makes me want to download pirated copies of the episodes and not back a corporation like Fox just in protest...

[eric]

Regarding Rocky Horror, it was originally a stage play. Staged productions of that show are licensed though Samuel French, a large agency which represents hundreds if not thousands of stage works. Since Fox doesn't own Rocky Horror like they own Buffy. Fox has no power to shutdown re-enactments of Rocky.

[Don]

Chris S, I think the distinction here in licensing is that they wanted to perform the entire episode, songs AND dialog. I believe they could pay ASCAP if they wanted to "cover" the songs but when you get into the entire book of a work it's a different matter.

Want to release a punk rock cover of one of the songs from Once More With Feeling? Pay your money for performance rights and move on, there's law covering that and what can be charged. Want to perform the entire show/play? That's not subject to a blanket pricing structure.

I'm sure someone else can clarify this better.

[Kevin Andrew Murphy]

A big thing with copyright is "Don't ask/Don't tell/Don't advertise." I attended a Halloween dance held by a local nonprofit a few years ago, just after the Buffy musical had aired. As the half-time entertainment, we got to see a performance of the number with Sweet and Dawn at the Bronze, to our unexpected delight and surprise. Operative word here: unexpected.

Had the theatre simply told folk that there would have been a "Halloween Gala" and when folk got there, they'd suddenly witnessed the Buffy musical, Fox could have claimed they had no knowledge, or even done the after-the-fact shell game of nodding and winking and having the theatre sign off on a piece of paper saying that they'd been granted one-time rights for a dollar but wouldn't do it again.

Rocky Horror is a bit different, in that the film is actually being shown, and get's shown even if the cast doesn't show up. First time I saw it, there was one Brad and one Magenta and that was it, except for the film.

The troublesome thing is, I want to see a licenced Buffy musical elaborated from the episode, with the addition of Anya's dream-sequence song from season 7, and other material (for example, what the Troika was doing when Sweet showed up). I'd also like to see a fan version or two, but think those should be done as more of an underground thing, spread by word of mouth--something the internet isn't good for.

It would probably be more sensible if there were just some standard licensing fee for dramas. Or if they'd just mount a large stage musical so that it could be licensed for cheap as secondary rights, as is done with high school productions of things that were on Broadway fifty years ago.

[Chris Dellario]

Why would FOX kill the performance instead of insisting that prior permission be obtained with the option to charge for that grant of permission? I don't understand the business or legal sense behind their act of killing the performance. By insisting that prior permission be obtained they would protect their copyright, and by granting it they would look like nice guys while generating further interest in their property.

[Joe Gratz]

The short answer to a few of the questions above is that neither mechanical licensing nor public performances licensed by a PRO like ASCAP apply to *dramatic* musical works. This is obviously a dramatic musical work, so they have to get a license straight from the copyright holder or their agent.

This is why, for example, theater companies have to get a license for each production from an agent of the copyright holder (commonly MTI) instead of just getting a blanket license from ASCAP for their whole season.

There's no reason Fox couldn't license the rights for "Once More With Feeling" for amateur performance without doing their own huge musical version (other than perhaps not having the contractual right to do so, or not owning all of the relevant copyrights) -- Disney did it recently with Aladdin.

I agree that it would have been really good of Fox to license the production or look the other way.

[novachild]

This is a sad day for all fans everywhere. FOX should be ashamed of themselves. Selfish bastards.

Does fox own the original screenplay? Or just the finished production?

[ALaw]

I REALLY want to see a Rocky Horror-esque version of the episode, I understand that Fox just shut down this attempt to stage a version but as one poster pointed out there must be some off the radar events going on. If anyone knows of where I can find some info on one please send me an email at monkeyfelo1@yahoo.com . I swear I am just a fan.

[Thomas S Wrobel]

If no money is made, or no brand is damaged. (and thus money taken away), then theres no reason for it to be stoped.

To be honest, If done retroactively and taken to caught fox wouldnt get a penny.
Big companys bully little people around, but that dosnt nesscerly mean the law is on their side.

If I act out a scene of buffy to a friend is that copywrite?
Is it agains the law to tell people about an eppisode?
What about 5 people?
10 people?

It dosnt make sense to draw any lines or rules about this stuff unless money is involved.
No money was made.
No reputation was being harmed.

Therefor, If push came to shove, I am not actualy sure the copywrite law would back fox up on this.
And if it does, how far back does it extend?

[Stanley]

Rrocky Horror is performed all over the world. But like all copywritten work, you have to get permission and work out a royalties payment. This is the norm for every non public work. It would be like you inventing a great product, then another company making it without your permission, or without paying you "royalties" for the rights.