The award winning show "The Good Wife" offered a lively banter discussing Copyright Infringement in the recent episode titled, "Goliath And David." Watch the show online.
I loved every minute of it and think the issues brought forward are relevant to many of the discussions circulating in the arts and crafts world regarding legal issues, copyright, and copycats. Six minutes into the story the first revelation arrives. And if you are confused about copyright, copies, derivative work, parody, and fair use....it is all explained in the story. Pay attention to how precise and specific the discussion needs to be in teasing out the legal issues.
They use music, more specifically a rap song, as the example....and... sure, this is just a fictional story, but the information was fascinating. The issues presented in the case become more relevant with the recent cases brought to court by Marvin Gaye estate suing for infringement against Robin Thicke song "Blurred Lines."
Compulsory License, and Derivative Copyright were the first two issues brought forward in the story. Quoting the show, "The compulsory copyright allows you to cover the song, but the derivative rights protect you if you make changes in that song." This is specific to the music industry.
The next issue discussed is a legal agreement. Alicia Floric (the main character of the show) says, "Money has to change hands even if it is only five dollars." True. A similar example in the Netflix series "Breaking Bad", a lawyer asks for a dollar from each prospective client (in the middle of nowhere, at night, in the windy desert) to enter into a contractual relationship with his new "clients" to establish lawyer/client confidentiality.
Continuing with The Good Wife copyright issues...
We then hear the voice of "excuses." Statements that are often used to justify copies. The character on the stand in court says, "I do know artists are sponges. We take in the same information from the zeitgeist, transmute it into something new. And sometimes there is a best way to do something. Uh, good artists will often duplicate each other because they hit on the best way at the same time." I can't tell you how many times I've heard these kinds of comments.
Additional issues brought forward in the story include parody and fair use.* I love how the musician is lost in the legal arguments. "This is so cool. It's like legal jazz." The dialog is really funny. His scripted opinion echoes half the audience watching the show.
The story then moves onto the idea of transformation under Fair Use. "The judge wants the characters to prove that it was a "transformative artwork."
Two music experts are brought into the courtroom. Fascinating as their opinions diverge. Unfortunately the show confuses "satire" and "parody" using the words interchangeably, but ultimately the program does state, "Originality must be protected."
"A transformative artwork by its very definition must be transformative."
I don't want to reveal the entire show.....you might have to watch the story a couple of times to absorb all the legalities. And the whole show has it's usual multiple threads of intrigue, sexual tension, and character development. All worth watching any night of the week!
The only thing that I will tell you is the copycat lost the case. Watch the show to find out how this is revealed.
Listen to this YouTube video to compare the two songs "Blurred Lines" from Robin Thicke and "Got to Give It Up" by Marvin Gaye.
*The Supreme Court has unequivocally held that a parody may qualify as fair use under § 107. According to the Court, a parody is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. Like other forms of comment or criticism, parody can provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.” Id. In other words, parodies can be considered “transformative” works, as opposed to merely “superseding” works. Since transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright,” the more transformative the parody, the less will be the importance of other § 107 factors that may weigh
against a finding of fair use. Id. at 579.