As noted in a recent Techdirt post, Jonathan Coulton Publicly Shames Fox For Copying His Arrangement In Glee, the Indie singer Jonathan Coulton produced his own version of a previous Sir Mix-a-Lot’s “Baby Got Back”. As noted in this Slate piece, a very similar version was then scheduled to be used in an upcoming episode of the TV show Glee. The similarities were noticed when it was unofficially leaked before the airing of the show. Coulton then complained on Twitter that Fox “never even contacted me.” There seem to be a couple of assumptions being made by Coulton and others commenting on the case: one about copyright law; another about right and wrong.
The copyright issues are laid out in the Slate piece, but somewhat mangled:
An arrangement like Coulton’s is technically called a “derivative work,” because it is based on a pre-existing “original work” (Sir Mix-A-Lot’s original rap song). In order to create his arrangement and sell it, Coulton obtained a compulsory (or “statutory”) license from the copyright holder, the Harry Fox Agency. Coulton himself does not own the rights to Mix-A-Lot’s lyrics, of course, but, according to the U.S. Copyright Office, “the copyright of a derivative work covers … the additions, changes, or other new material appearing for the first time in the work.”
Even if Fox got permission for the Glee cover of “Baby Got Back” from Harry Fox (which they undoubtedly did), they are also required to seek permission from Coulton for use of his “additions”—chords, phrasings, rhythms, and so on—that make his arrangement unique (and choir-boy friendly). Of course, he’d have to prove in court that the two arrangements are, in fact identical, but, to our (admittedly non-expert) ears, there’s very little question. Fox owes Coulton at least an apology—and probably a check, as well.
This analysis is not quite right (I believe): Glee‘s cover of Coulton’s version need not be identical to infringe his copyright; after all, Coulton’s own cover of the original version was not identical to it yet still required a license in order to avoid copyright infringement.
The assumption here is that Fox has infringed copyright and has done something wrong—though it’s not clear exactly what the wrong was: Coulton’s complaint implies that Fox’s mistake was not contacting him first; others imply that using it without giving him attribution was wrong (see, e.g., the comments by Andy Ihnatko in the most recent episode of This Week in Tech [TWiT]); Masnick implies Fox has been a “bad actor” here.
As for the copyright issue: as Slate notes, Glee very likely already got a license for use of the original, just as Coulton himself did. I am not clear on whether they might have also acquired a compulsory license for Coulton’s arrangement without Coulton himself being contacted, but even if they did not, as suggested on TWiT, their tactic might be to use the song and wait for people to ding them afterwards, at which time they would pay the requested royalty.
In any case, copyright is itself wrong, so even if there was copyright infringement here, that does not imply that anything “wrong” was done.
As for complaints that Coulton did not receive attribution: well as far as I know the Glee episode featuring the song has not even aired yet, so it’s not yet known whether there is attribution in the credits.
But in my view, even if there was no attribution credit given, there is still nothing wrong whatsoever here. It’s not as if the producers of Glee are being dishonest and claiming to have come up with the arrangement on their own; there is no “plagiarism” going on here.
In the TWiT discussion about this—which ironically follows a discussion of how a prosecutor’s use of copyright law threats against Aaron Swartz drove him to suicide—Andy Ihnatko bizarrely claims that this has somehow harmed Coulton, even though Glee is seen by millions and this is no doubt great PR for the marginally known Coulton. Why? Because if Coulton performs his own version of the song in a concert, people might think he copied it from Glee. Even … though … we all know that they copied it from him. I don’t get this reasoning. Does Ihnatko think only he knows about this? He is discussing a public story. That is, Coulton’s authorship of the version is already publicly known. Coulton had no trouble demonstrating this. (This is also one reason why copyright proponents’ worries about plagiarism are off-base; not only does plagiarism have nothing to do with copyright infringement, but plagiarism is not a major problem; anyone plagiarized will easily be able to prove they authored the work first.)
In a free society, with no copyright law, in my view there is no ethical or moral obligation whatsoever to ask permission of an artist to use or copy or reuse or remix their earlier work, nor even to provide attribution credit. The only obligation is to be honest: not to dishonestly claim original authorship. But merely singing or performing someone else’s song does not mean the singer is claiming to have originated it. As for attribution: sometimes it’s called for, according to context, just as footnotes are expected in a law review article, but not in an email to a friend, but this is more a matter of scholarly protocols than morality.
Copyright law is not only evil for the direct damage it does to individual lives, but because it has distorted our entire culture and makes people think of copying as wrong. It is not wrong at all. Copying is good. Learning is good. There is nothing whatsoever wrong with learning, emulating, remixing, competing. Copyright law has confused the whole world, deluded almost everyone into thinking something harmless and natural, is somehow icky and bad. How sad.
Update: A version of this was published at LFB
It’s Not Evil to Copy
Update: Turns out Coulton may be guilty of copyright infringement after whining about Fox copying him: From Techdirt:
What’s that? Well, check it out here. Here’s the relevant part for our discussion:
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.
Previously, we and many others had suggested that the changes that what Coulton had made could possibly be protected as unique creative works. However, he more or less gave up that claim when he used the statutory license, rather than doing a direct deal with Sir Mix A Lot, or whoever else holds the rights on the song. That also means, however, that Coulton did not live up to Section 115 and his cover, in all likelihood, violates the original copyrights, because the license he got does not cover the very different arrangement and melody he created. “
As always, thanks for sharing your thoughts on recent news. Just wanted to touch on this one point made in your article.
“The only obligation is to be honest: not to dishonestly claim original authorship”
When debating copyright, I always preface by saying there’s a difference between copyright and fraud. Unfortunately, for issues of fraud, using copyright law to win our case is often the easiest route. A personal example I’d like to share had to do with someone using a photo I took, of a product I manufacture, in order to sell their own version of the product. They didn’t disclose this, and coupled with a carefully worded product description, it appeared to numerous shoppers (which contacted me in confusion) that this seller was selling our product.
My photos are all CC BY 3.0, and as an avid photographer, seeing my work shared is a great honor. I felt the above case, however, was one of fraud as the actions were intentionally used to deceive shoppers. So, how was I able to win my case? Unfortunately, I’m disheartened to say using DMCA was the quickest, cheapest, and most effective tool for fighting this case. Within 24 hrs, the accuser changed their photo and description, and the case for fraud could no longer be made
Which leads me to my final thought (and the purpose of my ramblings). Abolishing copyright law could very well leave us with outdated law that protects against fraud. This is not a problem, nor a reason to keep copyright law, just an admission of problems that could arise. It may be worth exploring then, the improvement of laws around fraud first in order to reduce the way in which copyright law is used now.
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I am new to the copyright wars and I haven’t picked a side. My concern is that, if I’m understanding you right, it would be much harder to make a living as a composer if there was no compensation for using your material. For instance, after hours of work and years of training, an orchestral composer who does not conduct wouldn’t get paid. This would seem to have a negative effect on music by limiting contribution to only those who can perform or wealthy dilettantes.
Could you recommend some reading on the subject?
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