'The Good Wife': Good Law? - Season 5, Episode 11
"The Good Wife" is always game for a fun copyright case. This week, Florrick & Agos took aim at "Glee" and represented a band's bad cover song. But was their use of law music to our ears?
Here's a rundown of this week's copyright battle in "Goliath and David":
Episode Recap (Spoiler Alert!):
A goofy band called Rowby and Marshall approaches Florrick & Agos, alleging that a hit TV show called "Drama Camp" (a tongue-in-cheek fictional version of "Glee") ripped off their cover of another artist's rap song, "Thicky Trick." Cary and Alicia are hesitant to take up a "David v. Goliath" copyright case against a major TV network, but quickly "change their tune" when they learn the case is worth $2 million.
In court, the judge determines the show did rip off Rowby and Marshall's cover song, but finds that the band isn't entitled to damages because they didn't get permission from the original artist to make the cover. After some classic back-and-forth legal maneuvering, the case is abruptly resolved when it's discovered "Drama Camp" used part of the band's recording in its version, spelling a big win for Cary and Alicia.
The episode was a riff on a "Glee" controversy surrounding a "Baby Got Back" cover. The issue was whether "Glee" could
steal make a cover of a cover without permission from the cover artist (So meta!).
Here, even though "Drama Camp" ripped off Rowby and Marshall's cover, the band couldn't get damages because the band didn't secure the proper legal rights in the first place. They made an unauthorized derivative work.
Alas, to make a cover song (legally, anyway), you must get a couple of different copyright protections. In this case, they obtained a compulsory license, but failed to get sufficient derivative rights from the copyright owner.
The golden line in the episode is when the band's manager says, "Wait, I needed two things?" If only they had an IP lawyer!
The episode conflates the use of the phrase "actual theft" with copyright infringement. In the entertainment industry and government's battle against piracy, there are attempts being made to charge copyright infringement as actual theft. But in general, copyright infringement and theft are actually two different issues covered by very different laws.
To show a substantial similarity between the show and the band's covers, Cary plays both covers at the same time. This is the way it's done in real infringement cases, and it's as amusing in real life as it is on TV.
Whether it's George Harrison and The Chiffons over "My Sweet Lord" or Carrie Underwood, Brad Paisley and a Nashville singer over the chart-topping "Remind Me," courts must methodically compare the melodies and lyrics to assess their substantial similarity.
Declaratory judgment: Florrick & Agos demand a declaratory judgment of non-infringement. Rather than money, they were seeking a declaration by the court on the band's legal right and status as non-copyright infringers.
Transformative works: At one point, Florrick & Agos argue the band's rap cover was satirical à la Dynamite Hack's "Boyz in the Hood," which would entitle it to protection as a transformative work because it comments on the original work. But there's a fine line between transformative works and derivative infringement.
Copyright cases are always fun, right? Especially when they involve silly rap song covers and poking fun at
What did you think of this week's episode of "The Good Wife"? Is the show guilty of making any legal mistakes? Check back here for more legal recaps of "The Good Wife," and send us a tweet at @FindLawConsumer with the hashtag #TheGoodWife.
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- Don't Stop Believin' in Copyright Infringement Damages (FindLaw's U.S. Eighth Circuit Blog)
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