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Copyright v. Academic Freedom @ Evergreen State College

Quisney OUT

Students at Evergreen State College have been ordered to shut down public performances of the student written musical parody “The Quisney Project presents: O.U.T.: Once Upon a Time” based on copyright concerns. The first performance was scheduled for June, 5th.  The threat of this action prompted faculty to write the following letter which explains the issues :

Academic Freedom Threatened at Evergreen

AN OPEN LETTER AND EXPRESSION OF CONCERN

 

Faculty Submission

 

Facts and context:

 

During spring quarter 2014, eight students have been writing and rehearsing, and are prepared to perform, an original work of musical theater entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.” The project is registered for credit as eight ILCs, with sponsorship from multiple faculty and coordinated by Walter Grodzik, faculty of performing arts. Additional students are volunteering time and effort. This is a work of queer musical theater, the dominant mode of which is parody. As a work of critical inquiry and political commentary, the production situates itself within a long history of queer cultural, intellectual, and political work. Parody is central to this history. From Oscar Wilde to Margaret Cho, comedic forms of queer theater have ripped the mask from the pretensions of binary gender and heterosexuality by staging the duplicity and fakery of socially (and sometimes violently) imposed “norms” that wreck the lives and loves of queer people.

 

The script itself offers a critical exposé of harassment and discrimination based on gender expression, sexual orientation, and HIV status in an educational institution, the so-called St. Liberty High School.

 

Research for this project included legal research, as the students wished to explore parodic uses of lyrics and melodies that are generally known to audiences of American popular culture as Disney songs. The effacement of queer people from forms of popular culture marketed to children is understood by many scholars to be part of the structural violence that authorizes discrimination and harassment, the classic example of which is bullying in schools. For these reasons, Disney Corporation is one of the objects of critique in this original work of musical theater, and parody is one of the modes of issuing that critique.

 

Students proceeded with their project with advice from Washington Lawyers for the Arts that their project is not unusual and is highly defensible under case law regarding fair use. They consulted with Academic Dean Andrew Reece, and the academic deans approved the ILCs.

 

The administration began to change its tune in week six, apparently under pressure from Provost Michael Zimmerman. The student leader of the project, Fian Grunwald, sat down with Dean Reece and Assistant Attorney General Colleen Warren to discuss the matter. On Monday of week eight, without consulting the faculty sponsors, Dean Reece issued a written request to fundamentally alter the script, with indication that the college would prevent the students from using campus facilities to perform the script as written.

 

In an email communication sent Thursday, May 22, Dean Reece demanded a written confirmation from the students that they would not perform their script as written, to be received by his office “by 5:00 tomorrow (Friday, May 23). If I do not, I will be compelled to conclude that you intend to carry on with the performance in its present form, in which case the college administration will proceed as I indicated in our conversations and in previous messages. The staff will be directed to withdraw support and to prevent the use of college facilities, and the students and faculty will be asked to cancel the performances.”

 

The same email communication paradoxically affirms that faculty, and not administration, write evaluations of student accomplishments and preemptively declares that the transcript will not include any mention of the incorporation of Disney materials in the performance.

 

Performances are scheduled for June 5­ – 8, 7pm Thursday­ – Saturday & 1pm Sunday. Contact for location at TheQuisneyProject@gmail.com.

 

Resolution:

 

Whereas Evergreen’s Social Contract ensures freedom of academic inquiry for both students and faculty;

 

Whereas Evergreen’s non-discrimination policy forbids discrimination based on grounds including “sex, sexual orientation, gender identity, gender expression;”

 

Whereas the students of The Quisney Project in their production of “O.U.T.: Once Upon a Time” are currently under threat of curtailment of academic freedom; the sponsoring faculty under threat of sabotage of their professional judgement and their academic freedom; and both are under threat of discrimination for pursuing projects within the long tradition of queer musical theater;

 

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:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and;
  4. 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;

 

Whereas the administration has offered no indication that it has been contacted by any copyright holder in relation to this student project;

 

Whereas no copyright holders have contacted the students;

 

Whereas the actions of the administration create a dangerous chilling effect on First Amendment rights, by attempting to suppress ideas and the expression of those ideas in an educational setting, and to do so preemptively and in the absence of a complaint;

 

Whereas artistic, creative, and critical work frequently involves appropriating and transforming existing cultural products, and faculty members at Evergreen often teach such works in our programs and encourage students to use these techniques in their own practice;

 

Whereas overzealous efforts by the administration to interpret Fair Use so narrowly as to exclude any usage of any element of copyrighted material in a parodic transformation of that material pose far-reaching and dangerous consequences for the intellectual life of The Evergreen State College;

 

Whereas any work of appropriation bears the risk of scrutiny and action by rights holders, so this risk is not in itself sufficient grounds to suppress creative and intellectual freedom by precluding Fair Use;

 

Whereas college policy requires that when questions of copyright arise that may impact the college the questions be referred to the Copyright and Patent Board http://www.evergreen.edu/policies/policy/patentsandcopyrights, and this body has not considered the matter;

 

Whereas the academic deans approved the ILCs;

 

Whereas the C in ILC stands for contract, as in obligations the contracted parties owe to each other;

 

Whereas the students stand to suffer harm to their educational aspirations if the administration withdraws the material support of their learning it promised in its contract with them;

 

Whereas the college stands to suffer symbolic and material harm if these threats to academic freedom and non-discrimination escalate and become even more widely known than they already are.

 

Declaration:

 

We the undersigned faculty of The Evergreen State College do demand that the administration:

 

1) Provide the facilities and staff support it has promised to this theatrical production;

 

2) Desist from any effort to harass or retaliate against the students or their faculty sponsors or the undersigned;

 

3) Vigorously defend the First Amendment rights and the academic freedoms of all members of the campus community;

 

4) Comply with the college non-discrimination policy.

http://www.cooperpointjournal.com/2014/05/29/academic-freedom-threatened-at-evergreen/

The Dean’s Office letter follows:

Dear Fin, and Walter, Drew, Doreen, and Quisney Project students,

 

While there has been a great deal of discussion among faculty, staff, and students about the Quisney Project and its planned performance, and an academic dean and the Vice President for Academic Affairs have communicated with some of the students, faculty, and staff directly involved in the project, the College has not directly conveyed a final decision about the performance to this latter group.  This message serves to do this.  (It is being sent under separate cover to staff members.)  Please see that the other students participating in the project receive it.

You should all be proud of the support you have in the Evergreen community.  It speaks to the esteem and respect your work has earned by those who are familiar with it.  The academic goals of the Quisney Project were, from the beginning, ambitious, sophisticated, and important.  Your accomplishments, in the form of your research, your discussion, your script, and your rehearsals pay tribute to the hard work you have devoted to the Project.  A set of final performances could be a fine culmination of your learning and artistic achievements.

As we have made clear from the middle of the quarter, the planned performance raises strong liability concerns. The advice we have received from the state’s Attorney General’s office has persuaded us that it cannot be carried on in the form in which it was last presented to the deans, in a production on campus, with a public audience.   Significant input we have received from the campus community in the past several days have not changed that judgment.

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.

 

Sincerely,

 

The Academic Deans

This post represents the views of the author identified above and does not necessarily reflect the views of Washington Lawyers for the Arts (“WLA”). WLA provides this content as a public resource of general information. WLA does not warrant that the content is or will be complete and accurate. It is not intended by WLA, nor should it be considered by you, to be a source of legal advice. You should not rely upon the information provided. Rather, you should seek legal counsel for consultation and advice.

  1. David in Cal
    David in CalJune 12,14

    Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)[1] was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. I’m not a lawyer, but I think this decision would protect this student parody.

    • Brian Rowe
      Brian RoweJune 12,14

      Campbell v. Acuff-Rose Music,(great case to read) is on point for parody. There is still a lot of other factors to look at, but you found one of the key ideas.