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. Â 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.