Appeals Court Says High School Musical Group’s Unlicensed Song Use Was Fair Use

By Mark Walsh — March 26, 2020 4 min read

This is the time of year when many high schools would be presenting their spring musical and theater productions, a tradition that has been disrupted by the widespread closure of schools due to the coronavirus.

But there is a California high school musical association whose members, wherever they are during the medical crisis, may be bursting into song this week after a federal appeals court ruled in their favor in a high-stakes copyright battle.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously on March 24 that the Burbank High School Vocal Musical Association, its director, and its boosters did not infringe federal copyright law when one of the high school’s show choirs used an arrangement of the song “Magic,” which was a 1980 hit for Olivia Newton-John, without obtaining any copyright licenses.

The decision came in a case that has all the elements of an hourlong TV drama. Burbank High’s musical program is considered to be the inspiration for the 2009-15 Fox TV show “Glee.” (Even the 9th Circuit opinion made a reference to that.) The association has multiple show choirs who travel internationally to perform, hires professional musicians to play instruments backing them up, and spends thousands of dollars each year on travel, lighting, costumes, and custom musical arrangements, court papers say.

One thing the association does not spend on, according to the lawsuit by a major music licensing company, is copyright licenses that would compensate the original composers and other rights holders to the music used in the performances.

Tresóna Mulitmedia LLC, based in Scottsdale, Ariz., alleged in its suit that Burbank High School Vocal Music Association; its director, Brett Carroll; and various other parties violated copyright law by refusing to get licenses for some 80 songs used in performances from 2010-16. (The suit did not name the Burbank Unified School District as a defendant.)

“None of the defendants has ever paid any songwriter or rights holder a single dollar for the custom arrangements that defendants created, commissioned, recorded, and disseminated related to Burbank Show Choirs,” the suit said.

The lawsuit specifically sought damages for four songs whose copyrights were allegedly infringed: “Magic,” by Newton-John; "(I’ve Had) the Time of My Life,” by Bill Medley and Jennifer Warnes; “Hotel California” by the Eagles; and “Don’t Phunk With My Heart” by the Black Eyed Peas. The latter two songs were performed by another high school’s musical group at the Burbank Blast, a competition put on the Burbank association. (These artists are mentioned because of their close association with those songs, not because they are necessarily the songwriters or copyright holders.)

A federal district court held that Tresóna lacked standing to sue under copyright law for the three of the songs because it did not clearly have exclusive rights; and for “Magic,” that the defendants either had qualified immunity or could not be held liable for direct or secondary infringement.

In its March 24 decision in Tresóna Multimedia LLC v. Burbank High School Vocal Music Association, the 9th Circuit panel agreed that Tresóna did not hold exclusive rights to "(I’ve Had) The Time of My Life,” “Hotel California,” and “Don’t Phunk With My Heart.”

As to the song “Magic,” the 9th Circuit affirmed summary judgment for the defendants not for the reasons cited by the district court, but on the grounds of educational “fair use.”

The court cited language from U.S. Supreme Court precedent that “the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement.”

After analyzing the use of “Magic” in the Burbank Show Choir’s 2010-11 “Rainmaker” work, the court concluded that a rearrangement of the song, with some additional lyrics, was “transformative.” Also, the arrangement borrowed just 20 seconds from a 4-minute, 22-second song.

“We are especially swayed here by the limited and transformative nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of high school students,” the appellate panel said. “We conclude that Carroll’s use of a small portion of the song ‘Magic,’ along with portions of other songs, to create sheet music for a new and different high school choir showpiece performance was a fair use.”

Jann-Michael Greenburg, the vice president of business affairs for Tresóna, said in an interview Thursday that the company was weighing whether to seek rehearing before a larger 9th Circuit panel or an appeal to the Supreme Court.

Although the 9th Circuit referred to Tresóna has having an “aggressive litigation strategy,” Greenburg said his organization usually targets its enforcement efforts not at schools or educators but at independent contractors who do arrangements for high school musical groups as a business. (The company had reached a settlement with the arranger who had worked with Burbank High School’s show choirs.)

“Our general practice is to look at the individuals who are directly profiting,” Greenburg said.

“I don’t think it can be understated that schools, colleges, and universities, are the largest users of copyrighted works,” he added. “We support arts education. Our job at the end of the day is to represent songwriters and copyright owners and ensure their rights are being protected. If you are using their copyrighted works, you should ask their permission and compensate them.”

A version of this news article first appeared in The School Law Blog.

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