This article originally appeared in the 2.7.13 issue of Metroland
A bunch of people have asked me to write about this Jonathan
Coulton / Glee thing, so here goes.
you who are over, say, 30 have probably never heard of Jonathan Coulton until
now. The rest of you certainly know, and
most of you are fans. Coulton is a
good-natured singer-songwriter who has become successful and famous totally
outside of the music biz star-making machine.
He’s built a rock-solid relationship with his growing legions of fans by
engaging them via social media, self-releasing clever songs under Creative
Commons licenses (so fans can fool around with the songs, make videos, etc.),
being an unrepentant geek (he’s the “Contributing Troubadour” for Popular Science
magazine) and constantly
touring and requiring low ticket prices for his shows. He’s truly The People’s Singer. He’s pretty amazing. And he’s pretty huge.
A few years
ago, he released a totally reconstructed version of Sir Mix-A-Lot’s Baby Got Back
; he added and changed
lyrics, stuck in a melody, and created a gentle folksy-sounding track that owes
more to John Denver’s “Leavin’ On A Jet Plane” than Sir Mix-A-Lot. It’s one of Coulton’s more popular tunes.
week, the teevee show Glee
need to explain this
, do I?) featured
the depressingly happy youth thereon performing Coulton’s version of Baby Got Back
. Coulton wasn’t paid or even credited. The internet blew up with indignity: How
could Fox (Glee
’s network) so
brazenly rip off this beloved artist?
did it for the same reason a dog licks its privates—because it could. In fact, it’s not Fox that’s in the wrong
here, as a technical legal matter. It’s
Coulton! This is a terrific case study
on just how stupid our copyright laws have become.
been paying the writers of Baby Got Back
what’s called a mechanical royalty for his version of the song. Mechanical royalties date back to the days of
piano-rolls for player pianos. Piano
roll companies were buying up the copyrights to popular songs and then barring
other piano roll companies from putting the song out. Congress decided this was anti-competitive
and enacted a law that said once a song has been published (via sheet music,
piano roll, and very soon, on records) that anybody could make a “mechanical
reproduction” of their own version of the song so long as they pay a royalty
(set by the copyright office) to the copyright holder of the song. This continues to this day—if you want to
release a cover version of Gangham Style
, Tie Me Kangaroo Down,
or any other song, you don’t need permission,
you just need to pay the royalty (currently 9.1 cents per distributed copy) to
whoever owns the copyright to the composition.
weird for Coulton because a mechanical license only covers fairly faithful
versions of the song, or as the statute says “the arrangement shall not change
the basic melody or fundamental character of the work”. Now, most publishers are just happy to get royalty
payments, so traditionally artists doing cover versions have been given a wide
berth in terms of arrangements.
Coulton’s version of Baby Got Back
however, is beyond the pale by any measure—there is a new melody and new lyrics
that largely dispel the misogyny rampant in the original... the fundamental character
of the song has been profoundly changed.
So although the song’s publisher hasn’t complained, Coulton’s version is
actually a derivative work
original, something for which permission must be granted by the copyright
holder. If Coulton had secured that permission
(and the song owner can just say no), he would own the copyrights to whatever
new original stuff he put into his version.
But he hasn’t, so his work is an unauthorized derivative work of Baby Got Back
, and he therefore owns
for Fox to use a song in Glee, it needs to negotiate a license with the
copyright owner of the song. And Fox did
this for the copyright owner of Baby Got
, which as we just determined is not Jonathan Coulton. When questioned about this, Fox said that it
had done everything it was required to do under the law.
So, did Fox
plagiarize Jonathan Coulton?
Absolutely! Did Fox commit
copyright infringement? Nope. Why?
Because the law is stupid, that’s why.
(and here is an excellent example of why there are rarely any definitive answers in
copyright law. Ready? Here we go!).
Unless Coulton’s version is a parody
of the original. If it is, it’s fair
use, and Coulton would own his contributions lock, stock and barrel. And have Fox behind the 8-ball. In 1994 the Supreme Court ruled that 2 Live
Crew’s incomprehensible version of Roy Orbison’s Oh Pretty Woman
was quite likely a parody of the original. If 2 Live Crew's imbecilic nonsense was probably a parody, then Coulton’s Baby Got Back
is definitely a parody.
Paul C. Rapp is an area
intellectual property attorney and former rock musician who’s reminded of his
wayward 1980’s by an occasional sinus infection.