Policy & Law
Beloved internet folk musician Jonathan Coulton might be a champion of filesharing and liberal copyright laws, but it looks like he's not so happy with Glee's too-liberal use of his work: he took to Twitter today to note that a recent episode of the show "ripped off" his cover of "Baby Got Back" without asking permission or attributing him.
What's more, Coulton also believes that Glee's music directors also illegally sampled his version, noting specifically that the sound of a duck quacking in the Glee recording sounds suspiciously similar:
After listening, I think that @gleeonfox may have even used parts of my recording. Do I hear a duck quack? And of course they say "Johnny C"— Jonathan Coulton (@jonathancoulton) January 18, 2013
Listening to both versions, it's clear that Coulton has at least a moral point: the Glee version is an almost exact duplicate of his, and it's definitely a bit distasteful that Glee's producers and music directors didn't reach out to him before recording such a blatant reproduction of his famous cover.
But Coulton's actual legal argument is somewhat shakier: under section 115(a)(2) of the Copyright Act, musicians are allowed to perform and record covers of songs as long as they pay a "compulsory license" fee to the songwriter through the Harry Fox Agency — royalties Coulton says he's paid. But while musicians are allowed to make stylistic changes to songs as they cover them, their reworkings of the original song aren't protected by copyright unless they get permission from the original songwriter — the song itself still belongs to the songwriter, after all. Here's the language from the statute with the relevant bits bolded:
A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
(The history of these laws is long, convoluted, and deeply intertwined with the history of the player piano, which was an extremely controversial technology in its time. It's fascinating, if you're into that sort of thing.)
So Coulton's version of "Baby Got Back" isn't his to offer up for sale or licensing; Glee can use his changes without permission or even credit. (If Glee's producers used clips of Coulton's actual recording, like the duck sound, it's different: that would be copyright infringement of his sound recording.)
The license fee Coulton pays to sell 'Baby Got Back' doesn't create a new copyright in his arrangement
Final result? The licensing fees Coulton pays in order to sell "Baby Got Back" just clear him to sell the song, but don't create a new copyright in his arrangement. His work arranging the song effectively has no copyright at all — which means Glee's producers could take it at will. Think of it this way: our laws say you don't have to ask permission to make a cover song, but the tradeoff is that someone else doesn't have to ask permission to make a cover that sounds exactly like yours.
Now, Coulton doesn't appear to want money, or even anything more than just a simple acknowledgement of his effort in reworking the song, and he certainly deserves it. But the situation highlights an uncomfortable truth for copyright activists fighting against media corporations that use copyright law as a weapon: without that same copyright law to police how artists are credited and compensated for their work, those same media corporations will simply take whatever they want. Just consider: had Glee's producers wanted to use one of Coulton's original songs, he would have had to have been involved from the start — but lacking any protection for "Baby Got Back," all he can do is express his frustration on Twitter.