Coulton, Glee, and Copyright

Is Jonathan Coulton right?  And does it matter?

Sir Mix-a-Lot released ‘Baby Got Back’ in 1992.  Jonathan Coulton covered ‘Baby Got Back’ in 2005 using a new (let us say, “original,” both in the copyright sense of that word and in its ordinary but different everyday sense) arrangement.  The TV show Glee provoked a controversy recently by performing a version of ‘Baby Got Back’ that sounds nearly identical to Coulton’s version.

The various possible worlds of the Internet are a-flutter over the alleged appropriation of Coulton’s work by the producers of Glee.

Read summaries of the controversy here, here, and here.  The emerging consensus is that Glee may not have done anything wrong by the lights of copyright law, but stepped over the line ethically.

True?  Let’s walk through the law first, then some ethics.  There are few answers ahead, but perhaps some added ways of seeing through the mist.

As to the law:

What “rights” does Coulton have in his cover of ‘Baby Got Back’?  This depends on how Coulton went about producing the cover.

Possibility 1 is that Coulton did what he claims the producers of Glee should have done:  He went to Sir Mix-a-Lot and asked for permission.  The musicians would have worked out a deal on rights, royalties, and so forth.  In that deal they could have worked out whether Mix required that Coulton should have to assign Coulton’s publishing rights (rights in the newly-arranged version of the song) in the cover to Mix – a deal that Mix could easily have insisted on.  By contrast, Mix could have told Coulton to keep the publishing rights and instead pay Mix some amount of royalties – or nothing at all.  Again, all of the terms could have been worked out.  Had Coulton asked.

Which, so far as I can tell, he did not.  Coulton did not ask for Sir Mix-a-Lot’s permission to cover the song.  Let’s stow that point away for later, when we come back to the question of whether Glee should have asked Coulton for his permission.

Possibility 2 is that Coulton obtained the right to cover ‘Baby Got Back’ by complying with Section 115 of the U.S. Copyright Act, which speaks to covers (sometimes known as “mechanical licensing,” or “mechanicals,” for historical reasons.)  As most people in the musical world know, Section 115 is a great deal for many musicians who can’t afford to negotiate for rights to previously-released work.  The cover artist has the legal right to make the cover without asking the owner of the copyright in the original song, so long as the cover artist complies with some accounting formalities (in terms of royalties to the original songwriter, the cover is not cost-free, but it is low cost) and so long as the cover does not change “the basic melody or fundamental character of the work” (a legal standard that is virtually never challenged in court).  In exchange for granting the cover artist low-cost access to source material, Section 115 disallows the cover artist from claiming any rights in the arrangement of the cover version as a derivative of the original — unless the original songwriter agrees that he/she may.  What that means, in plain English, is that ordinarily the cover artist gets no rights in the new arrangement used to produce the cover version.  (Who gets those rights?  Answer:  Under Section 115, the arrangement falls into the public domain.  The cover artist cannot claim it, because Section 115 says so, and the original songwriter cannot claim it, because the original songwriter is not its author.)

Possibility 3 is that Coulton obtained his rights to cover ‘Baby Got Back’ by licensing those rights from the Harry Fox Agency, or HFA, which acts on behalf of a very large population of songwriting copyright owners in administering some or all of their copyrights.  An HFA license for a cover is in many ways similar to a Section 115 license, particularly in the sense that an HFA license specifically says that it grants rights that are no greater and no less than the rights that would have been applicable under Section 115.  In some ways an HFA license is not the same, because it is a contract between the original songwriter and the cover artist, rather than a legal grant authorized by Congress.  But for our purposes the distinction is unlikely to matter.  In both cases, the original songwriter is ordinarily not consulted in advance by the cover artist, except through the agency of HFA.  My understanding is that Coulton used either Section 115 or an HFA license to produce his cover.  That means that in all likelihood, he did not get Sir Mix-a-Lot’s permission.  And he does not have any copyright in his arrangement.

That’s a summary of the law regarding the arrangement.  There is one more bit of legality to consider, which is Coulton’s rights in the sound recording of his cover — that is, the actual recording, rather than the arrangement.  Section 115 does not say anything about rights in the recording, and in fact Coulton does have standing, at least, to make a claim about the recording.  But that claim is relatively limited.  The relevant statute is Section 114, which says in effect that a copyright owner has rights over the actual sounds as they are actually recorded (this would include samples as well as copies of the full recording).  Soundalike recordings are specifically OK.

So, my conclusion, along with that of a lot of other law professors and copyright specialists, is that Coulton’s possible copyright claim is either very weak (maybe Glee copied his recording?) or nonexistent.  You could argue that the law regarding covers is wrong, and should be changed (maybe cover artists should have independent rights in their arrangements).  I don’t think so, but that’s fair territory for debate.

What’s more interesting, of course, is how the ground has shifted so quickly to the so-called ethics of the situation.  Why didn’t the producers of Glee just pick up the phone?  Wouldn’t that have been fair?  Or at least the right thing to do?

American copyright law is well-known within the broad (and somewhat vague) setting of international copyright law for its rejection of most ethical arguments about copyright ownership and enforcement.  In the US, copyright is mostly an economic construct; it is an engine for markets in copyrighted works, the means by which authors and publishers can profit by selling copies of copyrighted material, and access to it.  But that conceptual framework has not stopped observers, including many legal scholars and copyright lawyers, from making appeals to the ethics of knowledge and information creation, distribution, and consumption.  You can try to take copyright out of the ethical minefield, but you can’t take the ethical minefield out of copyright.

What ethical result in Coulton’s case, then?  The answer, I think, depends on your underlying ethical framework.

One way to look at this situation is through Lockean goggles.  We could say that Jonathan Coulton earned the right to profit from his creative labors, and he has a claim on the world at large for any use of his labor that unjustly deprives him of its value — that is, that either deprives him of its value on terms to which he does not consent, or deprives him of its value without subjecting the use to a corresponding and more or less equivalent burden (which is to say, that the use might not be unjust if Coulton were paid, but that the user need not be the party that pays).  In ethical terms, if not in legal terms, Glee’s actions are unjust, because Glee has profited (used Coulton’s arrangement) without paying a fair toll (whether in terms of permission or price or both) to Coulton.

The difficulty with this argument, it seems to me, is that Coulton is well-known in the musical world for having relied on voluntary contributions from fans and others to support his career.  He offers his music to the world; the world takes; and if the world chooses, then the world sends him money.  He’s relied on that model for many years, and he’s been pretty successful at it — at least, successful enough that he was able to leave his “day job” a while back.

Why does that complicate Coulton’s ethical claim?  In my view, Coulton has not just participated in but has actively encouraged the development of a gift economy around his music.  He gives it away.  (I looked at his website; I didn’t see any evidence of limitations or restrictions on what people might do with the songs.)  If we measure the justice of Coulton’s circumstance from the point of view of Coulton’s subjective valuing of his labors, then there is no injustice; Couton received exactly what he intended — which is to say, nothing, both in terms of money and in terms of unquantifiable “respect.”  If we measure the justice of Coulton’s circumstance from the point of view of a more objective comparison of the value of Coulton’s labor and the benefit that Glee received, it’s difficult (though not impossible) to come to a different conclusion.  (Perhaps Coulton’s complaint that he should have been consulted in advance represents the difference, which is minor in objective terms, but if we’re running some objective calculus, Glee’s side of the ethical ledger should include not only the relatively modest burden of making the call but also the relatively modest benefit of using the arrangement).  My bottom line for the moment:  If Coulton really did freely and willingly give away copies of his songs (i.e., in this case, arrangements), then I think that his ethical position — in Lockean terms — is pretty weak.

But there’s more.

A second and different way to look at Coulton’s ethical claim is through a set of reciprocity goggles.  In that case, the gift character of Coulton’s work is a strength, not a weakness.  In a lot of gift economies though far from all of them, the gift community is characterized by an ethos of reciprocity.  One may not take something from the community as a gift without returning other material to the community as a gift, or (not and), one must pay forward the gift character of the material when “re-gifting” it.  (Creative Commons and open source licensing are, in part, examples of gift economies.)   There are different flavors of this argument, too.  Under one flavor — once a gift, always a gift, let us say — Coulton is in the ethical right, and Glee is in the ethical wrong:  Glee took Coulton’s gift and re-purposed it commercially, exploiting the gift for money rather than re-gifting it as Coulton had in the first place.  Under a different flavor — treat others as you would have them treat you, which is a more Kantian flavor, let us say — then Coulton is again on shaky ground:  He did not ask Sir Mix-a-Lot for permission to use ‘Baby Got Back,’ and accordingly has little ethical standing when he (Coulton) turns around and demands that the Glee producers ask him for permission.  To Coulton, one would say:  What’s sauce for the goose is sauce for the gander.

In short, it seems to me that Coulton’s ethical arguments have some strengths and have some weaknesses.  Where he stands depends very much on where he sits.

Finally — and if you’ve read this far, then thank you — what, if anything, does this all mean? I think that the conclusion about ethics says it all:  Nothing in the creative world is as straightforward as it seems, and when you combine that fact with the copyright world, a certain combustibility is almost inevitable.  If it is evidence of nothing else, the Coulton/Glee blowup is evidence  that there is virtually nothing that courts, Congress, and treaty makers can do to persuade artists, music lovers, commercial entertainment producers (among many other people) that they should think like copyright policymakers rather than as people of diverse human sensibilities.

 

14 thoughts on “Coulton, Glee, and Copyright

  1. One relevant difference between Coulton’s borrowing from Sir Mix-a-Lot and Glee’s borrowing from Coulton is that the statutory cover license has institutionalized the former form of borrowing into a common, recognized social practice in the industry. It’s not customary to ask before recording a cover version, whereas covering a cover is rare enough that there’s no corresponding practice. Moreover, one might construe the decision to use the HFA licensing process itself as an offer that invites borrowing (on the terms of the license), even if that offer takes place in the shadow of the statutory license.

  2. The relationships among law, ethics, and custom are certainly rich for further exploration here. Two quick notes, James: First, my understanding has long been that mechanical licensing encouraged the borrowing that we know as cover recording; covers as we know them today didn’t exist when the statute was first written. In other words, custom largely followed the law; the law didn’t institutionalize custom. Maybe that doesn’t matter, and maybe Coulter could argue that he followed an industry custom, and Glee didn’t (not because Glee violated a norm, but because there is no norm). That’s plausible, to be sure, but to me it doesn’t justify the ethical charges laid by Coulter and on his behalf. “When in doubt, ask for permission” is one way to interpret the macro structure of copyright law, and that interpretation doesn’t depend at all on ethical claims. Second, the interpretation of HFA use as a kind of contractual “offer,” or a non-contractual “invitation,” is really interesting — but isn’t the shadow of the law pretty long and deep? In terms of their copyright effect, HFA licenses don’t really differ from Section 115 licenses. It’s not a genuine contractual bargain if one party doesn’t have a choice. It strikes me that this situation is analogous, if not quite the same.

    • I’m not sure HFA licenses do mirror 115, though — if Coulton had an HFA license, he may have rights in the derivative version of the composition, right? Logically:
      1) HFA licenses him to do a new arrangement the preserves “the basic melody or fundamental character of the work”
      2) There is sufficient originality in the revised arrangement to qualify for protection as a derivative.
      3) The HFA, unlike Congress, cannot change the manner in which copyright vests in the case of derivative works — hence, at this point Coulton has lawfully created a derivative work that he owns. (This point was made by JL in a separate discussion. I admit, I’m not familiar with the terms of the HFA license in this case — so perhaps there’s a possibility of a forced assignment back to the original artist.)
      4) Glee’s cover infringes Coulton’s derivative work rights in the arrangement.

      My sense from all the commentary is that there’s something wrong with the above analysis. Can someone explain what’s missing?

  3. A few facts, which are readily available if you do your research, are that Mr. Coulton has a Harry Fox contractual agreement and pays and abides accordingly for that rendition of his song. Mr. Coulton’s terms for use of his music are clearly stated on his website and elsewhere as released under the Creative Commons NON-COMMERCIAL license (my emphasis,) and therefore, though his music is free for fans to use as they wish, no one is allowed to use his music (sound recordings or original compositions) in a commercial arena. And Fox/Glee has contacted Mr. Coulton enough to say that he should be “happy with the exposure”. Though the fact that he is given no credit, no official acknowledgement at all makes the idea of what is meant by “exposure” a quandary.

    It is true, as Judge Learned Hand pointed out, that original compositions *can* initiate completely independent of each other (his reference to “Ode to a Grecian Urn” thought,) but the fact of the similarity between the two executions (possibly even down to a duck quack,) makes it highly unlikely that any originality at all came from the music department at Glee. You are right in that there might be no legal basis (apart from the high possibility of unauthorized sampling of the copyright protected audio recording) to stand on (though we’d have to consider the recent case of the parody stage play getting enough copyright to stand against rip offs of it – outside of the copyright of the original source of the parody.) Still, there is the commercial marketplace consideration of “passing off” work as done by one party when all the creative efforts were done by someone else. The Lanham Act has been difficult to invoke since Monty Python lost its case when dealing with areas around copyright, but, as you point out, this issue isn’t covered by copyright laws as they are currently constructed, so it’s a long shot, but, could be a legal path to attempt.

    Still, the best result is to keep the debate out in the public discourse and to allow the audience to decide. I know that I have watched my last episode of Glee because of this issue and the advertisers looking for my dollars should soon be aware of people making similar choices.

    Christopher Schiller

  4. Does any band that does a cover in the style of “Boyz In Tha Hood” in the same cheesy fashion of Dynamite Hack owe them royalties and not the songs actual writers? Does anyone who does a piano acoustic cover of “Smells Like Teen Spirit” owe Tori Amos royalties and not the actual song writers? What about Alien Ant Farm’s cover of “Smooth Criminal”, or Michael Andrews cover of “Mad World.” When you look at it this way it seems absurd to claim ownership over a *style* of a cover.

    It’s also a bit absurd that the same people who have no problems with “ethics” when it comes to online piracy at the pirate bay (techdirt, etc) suddenly have an interest in ethics when it applies to a major media company. Hypocrisy much?

  5. Greg, I agree that under the law, a lot hinges on possible differences between the mechanics of an HFA license and a compulsory license under Section 115. I linked to the HFA license in the post. I’m not sure that this is the form that Jonathan Coulter used, but I think that it’s likely that he used that form or something very close to it. The HFA form says:

    “You have advised us, in our capacity as agent for the publisher(s) referred to in (B) supra that you wish to obtain a compulsory license to make and to distribute phonorecords of the copyrighted work referred to in (A), supra, under the compulsory license provision of Section 115 of the Copyright Act.
    Upon issuance of this license, you shall have all the rights which are granted to, and all the obligations which are imposed upon, users of said copyrighted work under the compulsory license provision of the Copyright Act, after phonorecords of the copyrighted work have been distributed to the public in the united states under the authority of the copyright owner by another person,”

    My common sense reading is that HFA is incorporating Section 115′s terms re: derivative rights into the HFA agreement. I agree that HFA can’t deny Coulter a right that he otherwise acquires under the law, but Coulter can agree, I think, that he hasn’t acquired that right — via a kind of estoppel, if in no other way. If Coulter did acquire that right under an HFA license, then the limitations of Section 115 could be routinely bypassed. That’s certainly possible — and it’s contemplated in the context of a negotiated bilateral agreement. If it were true for an HFA license, wouldn’t the HFA rates differ more substantially from 115 rates, and come closer to what a negotiated deal would involve?

  6. I can’t find evidence that Coulton put the recording of this song into Creative Commons. I’m not an expert on the law or the licenses, but i am an expert on common practices which i must assume are rooted in the law and licenses. My understanding is that coulton does not have the right to place his recording in creative commons as the recording of the song “contains” sir mix a lots copyright of the song itself, the song in abstract. Technically he can’t even give it away from his website. Again his recording contains the songwriters copyright. That is why Target couldn’t just get my permission to put my cover of pictures of matchstick men in a commercial, they had to get the original songwriters permission. (and the original songwriters insisted their version be used! That’s the way it goes sometimes!)

    But otherwise I agree. He has no legal or ethical claim unless they used or sampled his recording. There is an even murkier “right of publicity” he might have argued ( tom waits frito lay) but it would be a stretch as he’s just not very well known outside of the small freehadist/copyleft echo chamber. ITunes shows this track with less than 800 sales. The track certainly is distinct but I thought the tom waits case relied on him having built a distinct and recognizableb public persona. Not a distinct single arrangement.

  7. The prevailing analysis of this case, which you’ve detailed well here, presumes that Coulton’s arrangement of the song is (1) limited by the terms of Section 115 and/or the HFA license, and (2) not fair use. I disagree on both counts.

    Derivative works that vary from the original as widely as Coulton’s version are not covered by Section 115, which makes compulsory licenses available only for arrangements that don’t “change the basic melody or fundamental character of the work.” He did, so his use isn’t protected or limited by Section 115′s terms. That would mean he was not required to obtain a Harry Fox license. I don’t see why the fact that he did so should estop him from asserting fair use rights. Remember, 2 Live Crew first asked for a license for “Pretty Woman,” but the Supreme Court found that was no basis for denying their fair use. Requesting or getting a license doesn’t prove you needed one, just that you thought so, and the licensor was willing to take your payment.

    He changed the underlying work significantly enough that I’d argue a new copyright was created in his arrangement. There’s a strong case that he made transformative fair use of the original, likely as a parody. There’s been a growing trend of courts finding fair use even when the entire underlying work has been taken and repurposed. Betamax, Perfect 10, Bill Graham Archives and several Righthaven decisions come to mind. Those cases involved defendants reproducing works in different contexts, not creating new, independently copyrightable material, but the same principles should hold. And if Coulton created something new, he should be protected against a non-transformative imitation.

      • I’m sympathetic to the fair use argument. But there is essentially no caselaw on the “basic melody and fundamental character” principle; Acuff-Rose aside, most copyright owners seem to be more interested in the royalties than in the principle. Would Jonathan Coulter really be willing to rescind the HFA license and suffer the vagaries of a possible infringement lawsuit by Sir Mix-a-Lot — even if he might win in the end (this is a hypothetical; the case likely would be barred by the statute of limitations)? My bet is that he took the license precisely because it offered him the best balance of a fair price and legal certainty. Should he be able to back out of the deal now, because he thinks it was a bad one?

        • Your questions on ethics are well taken. Any cover song (or other appropriation) is at least somewhat presumptuous, because it claims a right to make use of someone else’s work. But in this case, I think Glee’s presumption in using Coulter’s version shouldn’t be equated with his presumption in using the original. Neither derivative use is expressly licensed or sanctioned by statute, but Coulter seems to make fair use by adding some valuable independent contribution to the source work, while Glee was merely passing off his contribution as theirs.

          Also, the legalities of covering a cover aren’t exactly uncharted. I haven’t seen cases specifically applying the issue to songs, but someone who creates a derivative work has rights against infringers of that derivative work. The Point Break Live case, which Christopher Schiller mentioned above, specifically found that to be true for a fair use derivative work: “creators of derivative works often register their own copyrights–without permission from the holder of the original copyright– and then sue those who create later derivative works from the same original but whose later derivative works are alleged to be too similar to the earlier derivative work and thus infringe on the earlier derivative work. … Nowhere in these cases it is ever questioned whether the plaintiff–creator of the earlier derivative work–had obtained permission from the original copyright holder before registering her own copyright in the derivative work.” (One copy of that opinion’s here: http://www.courthousenews.com/2011/05/18/Point%20Break%20Live!.pdf)

          Part of what makes this case interesting is that Coulton seems to have tried to treat all parties with respect. His song pays tongue-in-cheek tribute to Sir Mix-A-Lot, while at least arguably commenting on the original. He obtained an HFA license, paying Mix-A-Lot despite his potential fair use claim. He published his version under a CC license, making his version free to anyone who didn’t seek to profit from it. (Not having seen his HFA license, I’m presuming it gave him the right to sublicense at no charge, but it wouldn’t even need to if he was making fair use.) So I don’t see him as looking to back out of the deal. He just wanted Fox to comply with the deal he offered. Should he be penalized for according others more respect than the law required?

          • I guess I don’t see any penalty. Also, the HFA license doesn’t offer any rights to sublicense. Similarly, the fact that Coulton posted his work under a CC license is of limited importance legally (perhaps not ethically). At most, the CC license applies only to any legal rights that Coulton acquired, and if (under either the HFA license or Section 115) Coulton acquired no rights in his arrangement, then he owned nothing that could be licensed under a CC form. Legally, he had nothing to offer Fox except the sound recording – which Fox (as I understand it) did not use.

    • I’d like to believe that there are times that a derivative work is so transformative that it no longer needs the permission of the copyright owner. But I don’t see many court decisions challenging the copyright owner’s right to control derivative works. His best case might be to argue that his performance is a parody. But in his interview on “On the Media” (at http://www.onthemedia.org/2013/feb/01/jonathan-coultons-cover-cover-gets-covered/), he said that he was trying to comment on the history of white musicians lifting music from black artists. I am not sure that qualifies as a parody of Sir Mix-A-Lot (thought it might help bolster a fair use argument).

      If we assume that permission was required, would Coulton own a copyright in his arrangement? I thought that you could not get a copyright in a derivative work if one infringed on a copyright in the original?

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