2.7.13 BABY GOT PLAGIARISM

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.

            Those of 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.

            Then last week, the teevee show Glee (I don’t 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?

            Well, Fox 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.

            Coulton has 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, Bootylicious, 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.

            It gets 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 of the 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 nothing.

            In order 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 Back, 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.

            Unless (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.

            Definitely. 

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.