I think it's important to realize exactly what Fox is (regularly) doing here.
Fox/Glee finds a popular song. Fox/Glee wants to do a cover. Fox/Glee searches the internet to find a popular cover of the song. Fox/Glee does their cover in the same style, by having musicians play/record a note-for-note re-creation of that popular cover. Fox/Glee pays mechanical royalties to the original songwriter/publishing-company, pays absolutely nothing to the arranger that came up with the stylized cover version, and refuses to acknowledge them.
This is 100% legal, no matter how creative the arranger was in coming up with their cover. If the cover artist was granted a mechanical license, the only copyright protection they were granted was to their sound recording.
This is also not the first time it has happened. In episode 1, Glee's cover of Don't Stop Believing was practically identical to a famous a cappella arrangement (from a college a cappella group that released a cd and won some awards from it). There was another "regionals" number that was largely identical to another similarly famous a cappella arrangement.
It's lousy behavior and I think they deserve every bit of blowback for being poor citizens, but it is technically legal.
(Big asterisk: There is reason to believe that Fox actually took Coulston's karaoke version of BGB and recorded vocals over it. This, in contrast, would be a copyright infringement.)
Well, the music industry has threatened lawsuits before over very similar "fair use" by consumers. This is a pretty obscure piece of knowledge, but some years ago a web site called Powertab hosted very detailed transcriptions of guitar arrangements for lots of rock/metal/pop bands. The transcription was done by ear and provided very detailed scores for thousands of songs. It was a very good source for learning some more complicated arrangements. However, the Music Publishers' Association threatened to sue over alleged copyright violation and the site's administrators took the site down.
This happened in 2006, and I don't know what has happened since then. My impression was that the move killed off the entire PowerTab transcription community. This case was never tried in court and is very similar to what this story describes. What strikes me is the double standard.
Arguably, the only thing derivative about JoCo's cover is the lyrics. Hypothetically, if he had released it first with original lyrics (or as an instrumental), and then released his Baby Got Back as a mashup, would that afford him copyright protection for the composition? If so, is such a work-around truly legally necessary?
Some prankster could take Coulton's karaoke, re-create it by plunking in notes, sing different lyrics, and then what? They'd have the copyright on a brand new original song? And then if someone else did the exact same thing, they'd owe royalties to that prankster, even if the lyrics were changed again? I understand the basic principles, but that's where it starts to bend my mind.
1) Glee couldn't find a way to add any creative touches to the arrangement and actually make it their own. (They even included the duck!)
2) Glee doesn't acknowledge where they get their musical arrangements for cover songs
3) Through all of this, Sir Mix-A-Lot is the only one that really sees any money (as the writer)
“The words are the important thing. Don’t worry about tunes. Take a tune, sing high when they sing low, sing fast when they sing slow, and you’ve got a new tune.” — Woody Guthrie
The first time the internet got upset about this was when the Glee version of the song got posted to various sites (including iTunes) in advance of the show being broadcast. That FIRST version of the song included the duck sound and the line "Johnny C's in trouble". Lots of people noticed it and blogged about it and as a result, the network appears to have done a quick editing job to delete those exact elements from the version that broadcast - they left off one whole verse to do it.
>This is 100% legal, no matter how creative the arranger was in coming up with their cover. If the cover artist was granted a mechanical license, the only copyright protection they were granted was to their sound recording.
You know, people keep saying this, but I haven't seen any citations of it.
The reason everyone covers Cale's version of "Hallelujah" is not licensing, it's that his arrangement is so compelling that he made it impossible to hear the song any other way. If he hadn't, few would know it existed. Cale reinvented that song. In the annals of aesthetic justice he gets a cowriting credit beside Cohen.
John Cale is a classic under-the-radar genius. Drastically reworking songs has been one of his specialties for decades; he did it to "Heartbreak Hotel" twice. But "Hallelujah" was a freakish success. It used to bug me that no one ever mentioned Cale when that song came up (only Jeff Buckley, who copied him) but that has finally changed.
What screwed Cale is that his version was replaced on the Shrek soundtrack by Rufus Wainwright's carbon copy, because the record label wanted to promote Wainright at the time. Your point applies to that maneuver.
Curious factoid: of the few covers of "Hallelujah" that existed before Cale reworked it, one was by Bob Dylan. It's easy to see why Dylan would have singled that one out, but still, kind of amazing.
Either the karaoke version or the multitrack version he released...
The backing track has at least been remastered (EQ and heavy compression), and probably remixed (if it isn't actually a note for note reproduction, which would suck for Coulton).
Seriously, I suppose there's a market for terrible "mash-ups" considering the DJ scene at local clubs, but I don't understand how fans of the original songs can appreciate Glee's novelty-based compositions. Mash-ups should work based on harmonious choices, not song title, band name, or plot device.
This is not just a cover it's clearly a new arrangement. As an arrangement it is a derivative work. Derivative works, specifically including arrangements of preexisting compositions, are most certainly themselves copyrightable materials by their authors, which in this case is Coulton as he is the author of the arrangement.
Coulton notes that he has bought a license from the Harry Fox Agency giving him the right to perform and distribute his original arrangement of Sir Mix a Lot's work, so that is all proper and legal.
There is no doubt legally that Coulton holds a copyright to his arrangement and that Fox is engaging in copyright violation since it is obvious the Fox piece is a cover of the Coulton arrangement, given there are almost no differences between their cover and his original arrangement.
The opinions of the Fox lawyers who contacted him are predictable, but incorrect regarding law.
If I remember correctly the right to create derivative works is one of the five rights that can be licensed under copyright law.
IANAL but I would say if Coulton has a license from Harry Fox Agency to create derivative works, and the license terms allow him to retain ownership of such derivative works, then Fox may be infringing on Coulton's copyright. No?
If Coulton had rights to create a derivative, he'd be getting legal advice that he has a great (legal) case against Fox, if he's willing to spend the money and time. Though it isn't likely to make anyone fantastically wealthy.
If Coulton had a compulsory mechanical license to the original work, and just happened to create a unique arrangement and inadvertently created the derivative (he's no lawyer; how would he know a cover is only a cover until it isn't?) he'd be getting advice to let it blow over, because any action he happened to win against Fox on the grounds of their infringing his derivative would leave him open to suit from the original rights holder for not having had a license to actually create a derivative.
As Coulton termed the advice he received as "I have no case" I'm guessing he's not put off by the practical concern of time/money but by bad legal prospects. Particularly considering he went on to mention that he's still looking into whether they actually mixed in his original audio. (which, if they did, he could use to bring a copyright action against them without claiming that he created a derivative work.)
From Section 115 of the 1976 U.S. Copyright Act...
(2) 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.
I see. The compulsory license clause explicitly prohibits new creative work in the arrangement so that derivative copyright doesn't apply. The problem here is that his arrangement goes way beyond a straight cover and has a new melody, new chords, new instrumentation, rhythm - the only part he retained was the lyrics.
Coulton does own the copyright to his unique arrangement because of its obvious creative and new nature.
But if Coulton only has a mechanical license covering non-creative arrangements, then Coulton has actually never had the right to distribute the creative derivative work. He still owns the copyright to the unique parts of the arrangement - everything but the lyrics - but he has no right to perform or sell this derivative arrangement because he has not negotiated a license to distribute a derivative work that changes the nature of the song, and the compulsory license was the wrong thing for him to get as it does not cover that.
Fox Network/Glee still doesn't have the right to distribute because they are violating Coulton's arrangement copyright, but Coulton also doesn't have the right to distribute because the compulsory license doesn't cover substantial changes.
Very likely true! It's complicated and murky indeed. He may own a good part of the song that he has created, but not enough to ever see it released without a claim from the Mix-A-Lot song publishers.
There have been comments in previous threads which have made persuasive arguments that per the licensing agreements, Coulton doesn't have any copyright over his arrangement. Music licensing is a not-straightforward business and the protections we assume exist often don't seems to be the gist.
Very not-straightforward. A compulsory mechanical license to distribute a derivative work as a sound recording does not automatically grant you copyright over the derivative arrangement of the song itself. You kind of own the sound you recorded (you pay a statutory publishing rate, which is around 10 cents, per unit sold to the songwriters, which the Harry Fox Agency collects and distributes on behalf of the music publishing industry) but you don't actually own the song.
That said, it's most certainly not nice/cool/ethical to steal non-copyrighted arrangements simply because someone can't sue you.
Awesome response. I bought the song. I'm guessing that Fox/Glee either doesn't know how stupid this makes them look or they believe that any publicity is good publicity. Now all we need is the bear-luv inman cartoon for Adam Anders [1], the executive music producer for Glee.
"I'm guessing that Fox/Glee either doesn't know how stupid this makes them look or they believe that any publicity is good publicity."
What exactly do you predict this publicity will do to Glee? Are its fans going to walk out on it? Will the Cyber Police come and take its producers away?
It will someday show up in some Congressional testimony as an anecdote "proving" that the media companies are not actually interested in artist's rights. It won't be logical, but such is the way of Congressional hearings.
I wouldn't be surprised this does get walked back over the next couple of weeks, or if the practice ends despite its legality, and I bet it won't be any fan outrage, but internal RIAA-based pressure. This is not an anecdote they want floating around where it can be easily verified.
> It won't be logical, but such is the way of Congressional hearings.
When such statements are made routinely about an organization, it's time to move on to another one. (Roman Senate as precedent. I'm sure there are many others.)
The Roman Empire went on for a long time after it had become a parody of itself. In fact, it went on for a long time after it became a dysfunctional meta-parody of the earlier dictatorial rubber-stamp-legislature parody of itself. It's just that competent individuals kept appearing and propping it up enough for it to keep going.
If there's anything absurd, it's the notion of a historical individual being able to find a non-dysfunctional part of the world to move to. However, we now have the Internet and air travel.
"What exactly do you predict this publicity will do to Glee?"
Nothing. However what it will do is add another link in the rights / copyright / fair use discussion. So far that discussion has been dominated by the music labels putting it all on "bad actors" (snarky comment we call them "customers") who abuse copyrights willy-nilly and destroy their value. Pandora has been pushing the mandatory licensing conversation along with respect to "Internet Streaming which is not broadcasting." by pointing out some pretty arbitrary language there.
To date, the labels and media outlets, have had a lot of unwarranted credibility given them in the halls of Congress and this helps chip away at that credibility in a tangible way. But for it to actually chip away at it, it has to surface high enough into the general discourse of things that congressional representatives will have heard about it.
I think it would be worth a call/write in campaign to the biggest commercial advertisers on Glee that you don't feel that supporting their show is appropriate for their "family values" image to support a show with such unscrupulous management.
I don't understand the law here. Fox/Glee can separate two independently copyrightable components of a work -- the lyrics and the arrangement --, then pay off the lyricist and rip off the arranger with the law being none the wiser? Why do lyrics receive preferential treatment under the law? What happens if you take two popular songs, strip the lyrics from one and combine it with the arrangement of the other? What if you add your own lyrics to someone else's arrangement: do you now own the work? What if your cover of their cover is byte-for-byte identical to their cover, that's not a copy?! Can this channel separation copyright hack be reused in other contexts (software, movies)?
My understanding is that the crux is that in exchange for a very simple and easy licensing of the original, Jonathan Coulton signed away all of his rights except for his rights to his actual performance/recording.
Weird Al gets more complicated (and presumably expensive) licenses of the originals, so that he full out owns his creations.
That can't always be true, because in the debacle over Amish/Gangstas Paradise he stated that he was misinformed that the original artist has OKed it as a matter of courtesy, but that he had parody freedoms anyway.
Glee isn't the only thing to do this sort of shitty move, either. Ludachrist [1] did a remix of Major Lazer's "Pon De Floor" vs the Beverly Hills Cop song, entitled Pon De Foley.
Several months later, DJ Hero 2 (same family as Guitar Hero) took the same two tracks and made one of their game songs the exact same remix [2]. Players have to mix both tracks together and if they successfully do it, it plays the arrangement that Ludachrist had come up with.
Activision had permission from both Diplo (Major Lazer) and Harold Faltermeyer (composer of the BHC song), and therefore had legal clearance from it. At no point did they acknowledge the arrangement as coming from Ludachrist and legally didn't have to.
It's really scummy but that's how the outdated copyright laws work. It's just another argument for large-scale copyright reform.
I haven't been paying much attention to the legal details but I love that Sir Mix is getting royalties from this (partly because this stops the debate from descending into a "everything should be free" tangent).
Edit: after taking the 30 seconds to find and listen to an excerpt of Coulton's song, I can reasonably weigh in on the debate: Fuck Glee
Simple recap: Sir Mix-a-lot does a song, 'Baby's Got Back' which Jonathan Coulter does a cover of. Mixalot's more techno/rap and Coulter is more of a musical arrangement. Then Glee (TV Show) does a cover using Coulter's arrangement (music and additional lyrics) and doesn't so much as acknowledge his existence, much less pay the required licensing fees.
So Coulton composes some music, to which he sings someone else's lyrics. I don't see why he's not due composer's royalties. I'm not in the industry, but I'd read some place long ago that the composer gets his cut, the lyricist gets hist cut, and the recording artist gets his cut. And as soon as someone records it and releases it, then anyone else can record it, too, under compulsory licensing where the composer and lyricist continue to get their cuts (based on the rates in the compulsory parts of copyright law.)
What I'm not seeing here is a good explanation of how this all actually breaks down now. It seems to me that I'm way off from the current Way Things Are Done. How does Coulton's "arrangement" not qualify as an original composition that's deserving of copyright protection and compulsory licensing payments? Assuming I'm right, attribution isn't part of the law, license payments are.
This has been covered elsewhere - there are no required licensing fees unless Glee actually used Coulter's sound recording. Fox is guilty of a dick move here, but as long as they recreated the instrumental track themselves, they are legally in the clear.
However, I think it's likely that Fox actually used Coulton's karaoke backing tracks, which would mean Fox infringed Coulton's copyrights. I'm hoping for someone to do a digital analysis showing whether this is true.
Wow, those links are spectacular. Thanks for highlighting them.
Here's why this is an issue. Coulton released his sound recording under the Creative Commons, by-nc-sa . If they used his sound recording, Fox/Glee is infringing all three parts of that license:
- They didn't attribute
- They released it commercially
- They didn't release it share-alike
A creative commons license is additive, so they could have worked around it by contacting Coulton and getting permission ($$).
Since they did none of that, Coulton has legal grounds here, specifically relating to the use of the sound recording. In my IANAL opinion. :-)
JoCo created a cover of Sir Mix A Lot's song "Baby got back" in 2005 and paid the proper license to distribute his version.
Glee (A TV show in the US on Fox) copied his version but did not pay him any royalties.
So he has re-released his 2005 version with the title "Baby got back in the style of glee" so that people searching for the stolen copy from fox will find his as well.
Because it turns out that that isn't how music licensing works. If you look at the comments on previous threads on this issue it's been pointed out that JC doesn't have much in the way of rights over his version due to the way licensing agreements for cover versions work.
Whether or not it's right (morally) for Glee to not give him credit is a different matter, but all evidence is that Glee is in the right legally.
Derivative works need permission from the original publisher, while cover songs only needs a mechanical license. Or I'm I mistaken in assuming he only had a mechanical license?
Glee is an American musical TV show that covers a high school glee club (singing club) complete with all the teen drama of high school. They sing covers of existing songs during their musical acts. They sang Jonathan's cover of Sir Mix a Lot's "Baby Got Back" recently. Except the cover was sampled either 100% for the medley or recreated to a point of being imperceptibly similar. Jonathan was not given any attribution for this. Now Fox is selling recordings of this cover of Jonathan's cover. Does Jonathan have a claim to his cover of an already copyrighted work?
They've definitely overstepped the line on it. Next time they're thinking about taking down material on copyright grounds they might want to reflect on this case.
It is perhaps worth noting that the reason why this can happen is that the group of people running Glee and the people handling copyright takedowns are two completely different sets of people. Unless this event catalyzes communication between those two groups, you can expect to continue to see inconsistencies in policy enforcement like this.
There's an implicit assumption here that consistent behaviour within a corporation matters. I think this is wrong. Corporations' interests are served perfectly well by them behaving inconsistently whenever it suits their interests. There may well be executives in Fox who know about the inconsistencies here who simply don't care, because it doesn't affect the bottom line.
At the time of this writing there are 719 ratings for this single on iTunes. This isn't scientific, but I'd say the song is doing well. Ultimately, this whole Glee fiasco will undeniably end as a net positive for JoCo.
Depends on whether any of the people buying and rating it are actually new listeners, or if it's mostly just people who are already familiar with JoCo.
Right now, JC's song has 1,324 ratings, 1,314 of which are 5 stars. The ripoff has 1,472 ratings, 1,285 of which are 1 star. People are stepping up to bat for Jonathan Coulton. It just takes one person with media connections to step up to bat for this to get wide mainstream coverage. That's where the real upside for JC is.
Unfortunately, my only solid media contact works for a Newscorp company. It's time to think if any of you have news media contacts.
I also imagine there are a lot of Anons just looking for an excuse to rally against Fox/Newscorp. I'm not endorsing vigilantism, but Glee is one influential Anon away from wishing it had pulled its collective penis out of this hornets' nest and apologized before it felt the first sting. If the hive awakes, it's too late for apologies and Jonathan Coulton may be sucked into the media draft of Fox/Newscorp's supersonic pain train ride to Agonyville.
I don't see any situation where he makes retirement bank off of this, unless it turns out Fox actually used his recording. However, it's definitely within the realm of possibility that he comes out a few tens of kilobucks ahead on this if it gets picked up by mainstream media and/or some Anons use this as an excuse to go after Fox/Newscorp.
Coulton (or for that matter, you or I) could release an entire album of covers of Glee songs, and only owe money to the original author, not the Glee dudes?
Someone should make the "Low Rent Glee Ripoff Band" and do this.
While it would have been nice for Glee to acknowledge Jonathan's influence, an arranger can only claim copyright when the original songwriter has granted that privilege to said arranger, which I don't believe was the case when Coulton recorded his cover.
While it's a tad low to do this without any acknowledgment, this stuff happens all the time. Particularly with commercials. At least he has re-released his master and can monetize this way. This controversy will probably earn him more money than had it just been a 2 second blip in the credits.
Well, I never would have heard his version if it weren't for this fiasco. I don't watch Glee (I enjoyed the first few episodes, i'll admit... then it just got silly).
I'm not saying it's a good thing they did this - it's not. But hey, he did a great arrangement here, and i'm happy to have heard it now.
It would be wonderful if JoCo makes more money off thissnafu than if Fox had give you him a gratuity or credit in the first place.
It would be beautiful if the above were true and the creative team did it on purpose, for example by intentionally preserving the duck sound after being told to swipe and wipe and the song.
Fox/Glee finds a popular song. Fox/Glee wants to do a cover. Fox/Glee searches the internet to find a popular cover of the song. Fox/Glee does their cover in the same style, by having musicians play/record a note-for-note re-creation of that popular cover. Fox/Glee pays mechanical royalties to the original songwriter/publishing-company, pays absolutely nothing to the arranger that came up with the stylized cover version, and refuses to acknowledge them.
This is 100% legal, no matter how creative the arranger was in coming up with their cover. If the cover artist was granted a mechanical license, the only copyright protection they were granted was to their sound recording.
This is also not the first time it has happened. In episode 1, Glee's cover of Don't Stop Believing was practically identical to a famous a cappella arrangement (from a college a cappella group that released a cd and won some awards from it). There was another "regionals" number that was largely identical to another similarly famous a cappella arrangement.
It's lousy behavior and I think they deserve every bit of blowback for being poor citizens, but it is technically legal.
(Big asterisk: There is reason to believe that Fox actually took Coulston's karaoke version of BGB and recorded vocals over it. This, in contrast, would be a copyright infringement.)