— Jonathan Coulton (@jonathancoulton) January 18, 2013
In the midst of all of the inauguration excitement this weekend, I missed an interesting little copyfight. First things first: this week’s episode of Fox’s “Glee” features a cover of “Baby Got Back” by Sir Mix-A-Lot. Yes, really. But since the rapper’s version doesn’t exactly jibe with either the show’s babyfaced cast or its white-bread, choir-obsessed audience, a faithful cover wouldn’t do.
But rather than spend some of their approximately $3.5 million per-show budget paying an arranger to set the text, they just went with a 2005 cover that was already floating around the Internet, by singer-songwriter/comedian/professional geek Jonathan Coulton. They apparently didn’t even contact him about it. Slate explains the legalese:
So, if Coulton’s accusations turn out to be true, what legal recourse might he have? Fortunately, copyright law is pretty clear on the issue. 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.”
Fox probably acquired the license for the Sir Mix-A-Lot song, but Coulton also owns the rights for the derivative work. And the funny thing about the “Glee” version is that it even copies one of Coulton’s ad-libs, not to mention its melody, chord changes, and instrumentation. Coulton would still probably have a case if “Glee” had modified any two or three of those things, but what really stands out is how lazy the adaptation is.
Here’s the “Glee” version:
And Coulton’s original arrangement:
Mike Masnick praises Coulton for taking the “shaming” approach to the whole thing, while noting, had he been the one ripping off News Corp, it probably wouldn’t have happened that way:
Of course, as a public storm of support rises behind Coulton, it seems likely that Fox/Glee producers will step up, apologize and probably cut Coulton a check of some sort. All of that seems a lot more efficient — and it didn’t require copyright law at all. Just a bit of public shaming for a bad actor. Of course, just imagine if the situation had been reversed, and Coulton was caught making use of a News Corp.-owned song.
It’s definitely uncool that Coulton wasn’t contacted before “Glee” released an arrangement of his song which now has about a half-million views on YouTube, but we don’t know that he wouldn’t have been attributed in the credits because the episode hasn’t aired yet. Given the outcry, I can’t imagine Fox won’t at least go that far.
Stephen Kinsella, an anti-copyright absolutist, doesn’t see what the big deal is, and doesn’t think there’s even an obligation to attribute your source material when reusing or remixing a work. He writes:
… 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.
Except that’s exactly what they’re doing. There’s some murky ground here depending on how much the arrangement varies from the original, but the “Glee” version is almost identical to Coulton’s, borrowing his melody and changes, and by not providing attribution they’re suggesting it’s just like all the other songs used in the show.
Having seen Coulton play the song live, twice, alongside frequent tourmates and hometown heroes Paul and Storm, I am outraged.