There’s More to Life Than Copyright: On Glee Copying Jonathan Coulton

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Last week sing-songwriter Jonathan Coulton reported that Fox's show Glee was "inspired" by his unique cover of Sir Mix-a-Lot's "Baby Got Back" and plans to use a similar cover of that song on the air. Coulton's take on the song is unique and there doesn't appear to be any doubt that Glee copied him--though it's not clear whether the show actually uses any of his audio, or whether it merely makes a sound-alike version. Check out this left ear/right ear comparison.

If it turns out that Fox did what appears most likely at this point--created an unoriginal sound-alike of Coulton's version of the song--it's important to recognize that there is almost certainly no copyright issue. This is because of a few peculiarities of copyright law as it relates to music. But that doesn't mean that this is the end of the story. Just because I think Fox is legally in the clear, that doesn't mean it has done everything it should to respect other creators.

Backgrounder on Music Copyright That's Necessary to Understand What's Going on Here

The most basic fact about copyright and music is that there are two separate rights--the right to the song (the composition), and the right to a particular sound recording. Take Beck's album Sea Change. If I make a recording of the songs in this album, I'd have a copyright in the recording, but the songs would obviously still belong to Beck. If I released a CD of my recordings that CD would always implicate at least two copyrights. When you make a copy of a song off this album you're both copying my copyrighted material, the recording, and Beck's copyrighted material, the song.

As it happens, because Beck has distributed Sea Change, I wouldn't actually need his permission to make my album. (Note: see below for a correction.) Under the law, as long as you pay a set fee you're entitled to make and sell recordings of other people's songs: There's something called the "compulsory mechanical license." "Compulsory" means that this license is granted by law, not by the copyright holder, and "mechanical" refers to "making copies." (The license does not grant anyone the right to, for instance, perform a song publicly--a venue or performer that wants to do that would require a separate license.)

One condition of making a recording under the compulsory mechanical license is that the recording is not considered a "derivative work," and the recording artists does not get any copyright in any changes she might make to a song--the law refers to new "arrangements." Nilay Patel at The Verge covers this well. The statute in question states:

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.

(Technically, the compulsory license is not even available to recordings that change the "basic melody or fundamental character of the work," and there are arguments about what this means as there are arguments about every aspect of copyright law. But in practice even far-out cover versions of songs are considered to be covered by the license, as are slight modifications to a song's lyrics. It should be stressed that if Coulton has legally changed the "fundamental character" of "Baby Got Back," then he has infringed copyright by creating a derivative work without permission.)

There's one other fact about music copyright that we should consider before the implications of this become clear. In general, a "copy" for copyright purposes does not need to be a verbatim copy, or a copy made through some mechanical or automatic process. An art student making a bad copy of a painting in a museum is making a "copy" under the law. If I try to reproduce a poem from memory and get a few words wrong--that's a copy. Of course, in a given case it might be hard to draw the line between the protected "expression" of a work and the unprotected idea behind it, and to distinguish between legitimate inspiration and poorly-disguised copying. But with sound recordings this doesn't matter because a copyright owner's rights over them are more limited than with other kinds of work. The law is quite clear on this:

The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

Taken together, these two statutes mean that if you make an original-sounding cover song under the compulsory mechanical license, anyone is free to cover the same song in the exact same way. You have no copyright in your new "arrangement" to begin with, and your sound recording copyright is only infringed if someone actually samples or uses your actual recording--a new recording that sounds exactly the same does not infringe.

Coulton has been pretty clear that his song was done under the compulsory mechanical license. Assuming that this license does in fact apply in the first place (see above on the "basic melody or fundamental character" business), and assuming that Fox wasn't stupid enough to directly sample his actual recording--then Coulton has no copyright claim against Fox.

(I should note that singers with distinctive voices--Bette Midler and Tom Waits--have both won cases against defendants who deliberately imitated their voices in commercials. Midler and Waits both prevailed on a theory in California law called "voice misappropriation," and Waits also had a federal "false endorsement" claim. But voice misappropriation exists only "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product," and the false endorsement only prohibits "false designations of origin, false descriptions, and false representations in the advertising and sale of goods and services." Neither of those claims seem appropriate here--there's a difference between using a voice in a commercial to create the appearance of product endorsement, and just copying someone's style in a TV show.)

But Beyond Copyright, Is Fox Acting Kind of Jerky Here?

Yeah, pretty much. But we're beyond the (by comparison clearcut) area of copyright law into the squishier realms of ethics and politeness, and the answers here are going to be a lot less clear. I can only give my opinion.

When there's no copyright issue at stake I don't think anyone needs to ask for permission to make use of a work. You don't need to ask permission to make a fair use of content, to criticize it, or to cover a song. You don't need to ask permission to use someone's creations in a way that is specifically authorized. If there's not an actual legal requirement to ask for permission we shouldn't be creating new ethical requirements to do so. "Permission culture" stifles creativity and that's true whether the creator in question is Fox or Jonathan Coulton.

But if you're going to prominently use or copy someone's work why not give him a heads-up? For example, if someone releases a work under a CC0 license and you're going to use it as part of your million-dollar blockbuster movie, you don't have to let her know about it. But it would sure be nice, wouldn't it? Fox didn't need to ask Coulton's permission to do something it doesn't need permission to do--but it should have let him know.

Similarly with credit. Even where there is no actual copyright at stake it's just good form to give credit where credit is due. Glee should, at the very least, give prominent credit to Coulton (and why not direct viewers to where they can buy his version of the song?).

(Incidentally, you don't have to have some twisted view of copyright to appreciate that "credit" is often appropriate even when a person has done nothing more than, for example, tracked down an old public domain book, scanned it, and put it online. Scanning a work (or "curating" it, if you must use that word) doesn't give the scanner any rights over the work (or over the resulting digital files)--but it's nice to thank people for contributing to the digital commons. But it's a matter of degree--don't expect people to sing your praises for ripping a CD.)

In this case things are a little trickier because of the sometimes-shady purposes soundalike recordings have been put to. For instance, in the early 1960s "fake Beatles" bands were fairly common--bands like "The Liverpools" would put out albums with names like "Beatle Mania" and do soundalike covers of songs like "I Want to Hold Your Hand" in pretty clear attempts to cash in on the craze, possibly tricking kids (or clueless parents) into buying their records. (I've bought a few of these albums at record fairs; they're hilarious.) Arguably-deceptive soundalike cover songs are all over digital music stores and streaming services. (But on the plus side, some bands who have lost rights to their music to labels have regained some control by creating soundalike versions of their own songs.)

But in the final analysis I don't see any reason to treat soundalike recordings much different than any other lawful uses, such as a cover song or a parody. As long as the user in question is complying with the law, we shouldn't impose an extra-legal requirement that people start asking for permission, writing checks, and generally expanding the domain of "permission culture" beyond even where copyright goes. However, it's simply polite for a prominent user like Fox to give a heads-up to a guy like Jonathan Coulton, who might otherwise be surprised by a whole bunch of phone calls when what certainly appears to be his work appears on a popular show, and when the episode airs the least Fox could do is give credit to the artists it's profiting from. Fox may be acting legally in this case, but that doesn't mean it's doing the right thing.

Correction: the first version of this post used Song Reader, Beck's new sheet-music "album," as an example instead of Sea Change. I had it in my head that the compulsory license applies after first "publication," but this is wrong. It applies after the first authorized distribution of a sound recording. Song Reader has been published, but as far as I know Beck hasn't put out any recordings of the songs. The idea behind this is to give the composer of a song the first crack at the market for recordings. Sorry!

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