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Frozen: Free Speech at Evergreen State College

The “lawyers for the arts” group in Washington state recently reported about a brewing controversy at Evergreen State College (a public liberal arts college in Olympia) involving a student group and the institution’s administration.  Eight students there spent the spring quarter writing, rehearsing, and preparing to perform publicly an original musical theater production entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.”  Informed by queer theory, the work is a critical and political commentary on heterosexuality norms in American society.  Professors were involved in supervising and approving the project, which was scheduled to be performed this weekend in campus facilities.

Evergreen State College’s administration was supportive of the project initially.  However, after consulting with a state attorney, the administration apparently changed its tune, writing the students in late May to advise them that the musical could not be performed on college property in its present form.  Their concern?  Potential secondary liability for copyright infringement.

The students’ musical production apparently incorporates several Disney songs, which the students use to criticize and parody Disney as – in their view – a company that perpetuates gender norms through its songs and movies.  Faculty familiar with the project, and supportive of it, believe that the students’ use of Disney songs in the musical constitutes “fair use” under copyright law, as the musical “significantly alters the meaning of original melodies and lyrics, and offers critical commentary upon the original.”  They also characterize the administration’s efforts to move the musical off campus as “overzealous,” motivated by a narrow view of copyright law’s fair use provision, and likely to produce “far-reaching and dangerous consequences for the intellectual life of The Evergreen State College.”

The institution’s academic deans disagree, stating in a letter to the students that “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,” whose goals the deans otherwise call “ambitious, sophisticated, and important.”

The Facebook page for the Quisney Project makes no reference to the apparent dispute, and the college’s upcoming events page lists the musical as scheduled for June 6, 7, and 8; however, no location for the performance is provided, and visitors are asked to “Contact for location” an email address:

This unfortunate situation presents a conflict between students’ interest in academic freedom and an institution’s fears of being held secondarily liable for copyright infringement.  Having not viewed the musical’s script, I cannot analyze to what extent the fair use claim is on sure footing, although the musical’s educational value – not only to the students who created it, but also to those in the campus community who would view it – seems beyond question.  All the more reason one would expect that the institution would not act to stop the performance, or request substantial revisions to it, absent a substantial, articulable fear of copyright infringement liability.  Even then, private parties suing public institutions like Evergreen State College for copyright infringement only can obtain injunctive relief, not money damages, if they prevail on their infringement claim, so any fear that Disney could obtain a court order forcing the college to pay thousands of dollars in damages because of the students’ unlicensed use of Disney songs in the musical is unfounded. 

The administration’s apparent fears seem particularly dubious given the involvement in the Quisney Project of Washington Lawyers for the Arts, whose attorneys advised the students from the beginning on the fair use question.  But, for better or for worse, fair use analysis is famously fact sensitive, which in marginal cases (which this likely isn’t) has the tendency to chill expression, as a determination of fair use may not be made with certainty.  This fact, combined with the zeal with which Disney has pursued copyright claims in the past, may have informed the administration’s decision to take action here.  However, it is worth noting that some have suggested that Disney’s stance on unlicensed uses of its copyrighted material has softened since the blockbuster success of the 2013 movie Frozen, which inspired legions of fans to create their own authorized covers and derivations of songs from the movie (in particular, “Let It Go,” which won the 2014 Oscar® for best original song).

For now, questionable concerns for copyright infringement seem to have frozen, or at least chilled, at Evergreen College that which should be presumptively permitted on college campuses everywhere: probing, student-driven, thought-provoking speech, unfettered by content restrictions that do not advance compelling institutional interests.  Absent unassailable evidence that the musical’s inclusion of Disney songs is not permitted by fair use, my hope would be that Evergreen College administrators would take their cue from Disney and let this one go.

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