Disney's legal threat against a Galway play based on Sister Act highlights the warped world of copyright protection, writes Brian Boyd
It's your birthday. You're in a restaurant. The staff bring a cake to your table and sing Happy Birthday. You recognise the tune but not the words. The staff are singing different words to the tune because the lyrics to Happy Birthday are under copyright protection. Legally, you can sing the song in your own home but in a "place open to the public", such as a restaurant, you require a licence from your country's relevant music rights organisation. This is why some big-chain restaurants, such as TGI Friday's, have their own version of the song.
Welcome to the mad, bad and legally dangerous world of "intellectual property". Songs, films, books, plays and other original creative works come under this umbrella term, which is usually only used in a legal context when it refers to how these creative works are legally protected by patents, trademarks or copyrights. The general public has a good deal of trouble with the term, as not many people know which songs, films, books, plays and so on are legally protected, and therefore cannot be replicated or reproduced in any way without prior permission. Creative works not legally protected by copyright laws are said to be in the "public domain". The term itself is controversial (how can an idea be legally defined as "property"?) and in its legal application has thrown up a series of - as many would see it - punitive measures.
In 1995, the American Society of Composers, Authors and Publishers (Ascap) informed summer camps throughout the US that if the children at the camps were intending to sing songs around the campfire, licence fees would have to be paid. "They buy paper, twine and glue for their crafts, they can pay for the music, too," said John Lo Frumento, Ascap's chief operating officer at the time, defending the licence fee charge. "If offenders keep singing without paying, we will sue them if necessary."
In his fascinating book Brand Name Bullies, author David Bollier writes about how one summer camp simply couldn't afford the licence fees payment so the young children were reduced to doing the Macarena (the big hit that summer) in silence, without the music. One of the children was overheard trying to explain to her friend why they couldn't sing the song: "The people who wrote the song have a thing on it - a little 'c' with a circle around it. There's an alarm on it and if you sing it, BOOM!"
Six years earlier the Walt Disney Company had discovered that three day care centres for babies in Florida had decorated their walls with drawings of Mickey Mouse, Minnie Mouse and Goofy. Disney threatened to go to court if the centres did not remove the copyright protected images. The centres removed the images.
Which is why it was no surprise at all to find out this week that a student society at NUI Galway were threatened with legal action from Disney if they went ahead with a stage production "loosely based" on the Disney film Sister Act, which was due to be performed at the city's Black Box theatre. Cast and crew had been working for six months on the show. The Disney "cease and desist" letter, which was sent via a Dublin-based solicitor, informed the students that their performance of Sister Act would be in breach of intellectual property rights and that legal proceedings would be brought against the lesbian and gay student society behind the production if the show went ahead.
The NUI society can blame Monica Lewinsky for all of this. Back in 1998, representatives of Disney - mindful of the fact that their copyright on Mickey Mouse (who made his screen debut in 1928) was due to expire in 2003 - went to Washington looking for a new set of copyright laws. If the then existing copyright law had stood, after 2003, Mickey, Minnie, Goofy et al would have entered the public domain.
The then CEO of the Disney Company, Michael Eisner, was looking for the US government not just to grant a 20-year copyright extension on Disney creations but also to get Congress to revamp the Copyright Act to give copyright holders a metaphorical hammer to take to those who ignored copyright laws. This draconian measure allowed copyright holders to bypass the courts in getting warrants to charge copyright violators.
Eisner, and his Hollywood colleagues, arrived in Washington just as the Monica Lewinsky scandal was provoking national hysteria and it has been widely noted that the bills were not looked at very carefully because everyone's attention was on the more salacious story on offer elsewhere.
Many would ask why the Disney Company took such a heavy-handed action against the Galway students? Surely it means nothing to such a huge media conglomerate that a student society is performing one of their works.
If anything, it might draw attention back to the original Sister Act film, which could sell a few more DVD copies off the back of the exposure.
This, though, is not the point. Consider the case of Alexander Thompson, an American computer worker and obsessive fan of the Buffy the Vampire Slayer TV show. Thompson spent countless hours transcribing each episode of the show, complete with descriptions of scenery and action, and posted the results on the internet. It was, for Thompson, an act of homage. The show's producer and writer publicly thanked Thompson for spreading word of the show on the net. However, the company who owned the intellectual property rights to Buffy, 20th Century Fox, threatened Thompson with a lawsuit unless he removed the transcripts from the net. Thompson, they said, was engaged in "unauthorised distribution" of copyrighted work.
What you have in this case and the Galway students' case is a clash between common sense and the law. The companies at the top of the culture industry view the work they own as valuable and profitable and don't like anyone, anywhere going near it. In many ways, they're applying the "thin end of the wedge argument" - if Disney, for example, allowed the Galway students to reproduce a work they owned, they would be loosening their grip, in however small a manner, on their "property".
There is a bigger issue here, however. Creative artists depend on there being a rich stock of public domain works. There are countless examples of artists borrowing from existing sources, not least how Shakespeare's Romeo and Juliet (1591) borrowed heavily from Arthur Brooke's poem Romeus and Juliet (1562). Ironically, many of Disney's biggest hits - Snow White and the Seven Dwarves, Cinderella and Pinocchio are based on 19th century public domain works.
Many see today's copyright laws and their endless extensions as simply exercising a right to protect revenue streams for as long as possible.
Critics argue that today's intellectual property laws are so stringent that they hurt the public interest more than they help. Ultimately governments are responsible for the terms and durations of intellectual property laws and the perception here is that they are acting at the behest of big business interests and not in the public good.
Meanwhile, mind what you sing and where you sing it.