On March 24, 2020, the Ninth Circuit issued an opinion shredding an infringement claim that a copyright holder brought against a high school music director and other participants in a competitive school choir that inspired the popular TV show Glee. 

In Tresona Multimedia, LLC v. Burbank High Sch. Vocal Music Ass’n, the plaintiff Tresóna Multimedia claimed that competitive choirs at Burbank High School needed licenses for their renditions of four songs in which Tresóna claimed a copyright interest, including Magic, (I’ve Had) The Time of My Life, Hotel California, and Don’t Phunk With My Heart.  The district court granted summary judgment against Tresóna. The Ninth Circuit affirmed, except it went even further, ruling that the district court should have awarded the choir defendants their attorney’s fees.

The decision provides valuable insight into three issues of copyright law.

Standing.  First, the court held that Tresóna lacked standing to pursue claims as to three of the four songs (everything but Magic).  Consistent with longstanding copyright law, the court held that (a) only the holder of an exclusive license may sue for copyright infringement; and (b) the grant of an exclusive license requires the consent of all joint owners of a copyright.  Since Tresóna had received its copyright interest in the three songs only from one of multiple joint owners, the license was non-exclusive, and it therefore lacked standing to sue for infringement of those songs.

Fair Use.  Second, the court held that the choir’s use of the song Magic easily qualified for fair use protection.  As an arrangement for a school choir, the court held the use was not-for-profit and educational, weighing heavily in favor of fair use.  The court also found the use was highly transformative, sealing the deal for the defense.  The court compared the original version of the song, performed by Olivia Newton-John in the 1980 musical movie fantasy Xanadu, shown here:

https://www.youtube.com/watch?v=UGWoonk747I

with the rendition of the song performed by Burbank High’s In Sync in its show Rainmaker, shown here (start at 1:45):

https://www.youtube.com/watch?v=YaiTdy7p_oI

The court found that, while the original was “used as a vehicle of inspiration for pursuit of one’s dreams and love,” Rainmaker was “a show piece” that reworked multiple songs to tell an entirely different story, with new content and expression, about “a local Dust Bowl-era community ravaged by drought.”

Attorney’s Fees.  Third, the court held that the choir defendants were entitled to an award of attorney’s fees.  The court reasoned that the defendants “prevailed across the board in this action in the district court and won a ruling on their fair use defense on appeal.”  The court also found that Tresóna’s arguments were “objectively unreasonable.”  Tresóna’s lack of standing on three of the songs was clear under longstanding law, and the choir’s fair use defense on the fourth song, Magic, was a slam dunk.  “Awarding Defendants their attorneys’ fees," concluded the court, "insures that they are properly compensated for defending against overreaching claims of copyright infringement and pressing a defense that benefits those educating our youth."