
Jonathan Coulton strikes back by re-releasing his own song - spiffyman
http://www.jonathancoulton.com/2013/01/26/baby-got-back-glee-style/
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tunesmith
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.)

~~~
tnuc
Thank you for spelling this out.

This explains why there are so many god damn awful covers of John Cale's cover
of Hallelujah.

~~~
gruseom
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.

------
droithomme
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.

<http://www.copyright.gov/circs/circ14.pdf>

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.

~~~
bjornsing
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?

~~~
roc
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.)

~~~
stcredzero
_> If Coulton had rights to create a derivative, he'd be getting legal advice
that he has a great (legal) case against Fox_

Others are saying he paid for a license.

~~~
stdbrouw
That's roc's point: Coulton's rights depend on what kind of license he paid
for.

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ChuckMcM
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.

[1] <http://www.imdb.com/name/nm2946490/>

~~~
BHSPitMonkey
"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?

~~~
jerf
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.

~~~
stcredzero
_> 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.)

~~~
twoodfin
Don't be absurd. Mark Twain was making jokes about Congress over a century
ago, and he certainly wasn't the first.

~~~
stcredzero
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.

------
politician
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)?

~~~
KMag
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.

~~~
Evbn
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.

------
NamTaf
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.

[1]: NWS remove the space if you want to view it:
<http://www.youtube.com/watch>? v=9TYEgFfFdUY [2]:
<http://www.youtube.com/watch?v=M93Aji4MJBk>

------
danso
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

------
kt9
Can someone give me some more context on what this is about and the backstory
here? A link to something that explains whats going would be great!

~~~
ChuckMcM
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.

~~~
tunesmith
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.

~~~
jeffool
It has been done! In particular a look at the "quack" that Coulton used in his
version (instead of cussing like Mix-a-lot did):
[http://geeklikemetoo.blogspot.com/2013/01/about-that-
quack.h...](http://geeklikemetoo.blogspot.com/2013/01/about-that-quack.html)

He also points to a great example indicating that the beginning was likely
edited too: <http://imgur.com/a/F0HTP#1>

Also, if you're someone that trusts their own ears and has headphones, you can
hear Glee's in your left earbud, and Coulton's in your right, in this pairing:
<https://soundcloud.com/suudo/joco-vs-glee-baby-got-back>

~~~
tunesmith
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. :-)

------
bitsoda
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.

~~~
eridius
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.

~~~
KMag
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.

------
IvyMike
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.

~~~
re
It's been done:

<http://www.amazon.co.uk/dp/B003YYUSP6>

<http://www.amazon.com/dp/B005I88LY6>

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taylorlb
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.

~~~
dahart
You don't believe it was the case, or you're speculating?

"Back when I released it, I bought the statutory license to distribute my
version of this song through Harry Fox."

~~~
taylorlb
Speculating... but a statutory license is not equal to a copyright in this
case.

------
joeconyers
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.

~~~
DigitalJack
He's donating all the proceeds after licensing fees to charity. It seems all
he wants is acknowledgement that they used his mix.

------
tlrobinson
I bought his version of the song. I hope he uses the proceeds to sue the shit
out of Glee/Fox.

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shawnc
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.

------
stcredzero
The best revenge involves laughing all the way to the bank.

------
chris_wot
How much does this cost on iTunes for those of you in the US? It cost me $1.69
in Australian dollars, but the exchange rate is 1 USD to 0.96 AUD.

~~~
chris_wot
Hey, why the down vote?

~~~
chris_wot
I've got points to kill. Whoever is down voting is a coward, or a censorious
douchebag. Perhaps both.

------
Evbn
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.

