Slashdot Mirror
Jonathan Coulton Song Used By Glee Without Permission
FunPika writes "Jonathan Coulton, who is known for songs such as "Code Monkey", is claiming that his cover of "Baby Got Back" was used without permission on Glee, a television show aired by Fox Broadcasting Company. When the Glee version appeared on YouTube last week, Coulton suspected that it sounded similar to his cover, and several of his fans confirmed this by analyzing the two tracks. Despite Coulton contacting Fox, they continued with airing the episode and have placed the song on sale in iTunes."
What Glee released is not a "cover." It actually samples his recording. If they'd re-recorded all the instrumental parts in the exact style that JoCo arranged them, they'd be in the clear. But they didn't. They sang, karaoke-style, over his instrumental recordings.
From your link:
(If Glee's producers used clips of Coulton's actual recording, like the duck sound, it's different: that would be copyright infringement of his sound recording.)
DRM: Terminator crops for your mind!
It also notes that JoCo has posted that that happened:
What's more, Coulton also believes that Glee's music directors also illegally sampled his version, noting specifically that the sound of a duck quacking...
and then it goes on, undaunted by that detail, to talk about the legal ramifications of JoCo's claim assuming that the above is false, even though it gives absolutely no reason to doubt that it is true.
https://soundcloud.com/alacrion/joco-v-glee Here is a demonstration of the claim's truth. Now, like, let's keep on talking about why JoCo's legal claim has no merit in some other hypothetical universe where the Glee people actually went to the trouble of re-recording it, even though they didn't in this universe.
DRM: Terminator crops for your mind!
FTFY.
A cover is a derivative work. It is covered by copyright to the extent that it contains new, original creative expression above and beyond the original work. So to say that "it's not really covered by copyright law" is pretty much completely wrong unless the cover sounds almost exactly like the original, which his cover clearly does not. At all.
Oh, his melody is most assuredly covered by copyright. Unquestionably. Anyone who says otherwise is either deliberately lying or knows nothing whatsoever about copyright law. It's an independent musical expression sufficient to be protected on its own by copyright if not combined with those lyrics. Therefore, it is protected just the same as any other artistic creation. If Fox really stole his original melody, and continued to use it even after having been informed that their use was not authorized, that meets the criteria for willful infringement. I believe the words "treble damages" come to mind.
Based on what I'm reading, it sounds like Fox isn't remotely on the right side of the law here. I would strongly urge Mr. Coulton to contact a lawyer who specializes in copyright cases. What Fox's lawyers are telling him is complete bulls**t, and they're pretty much pissing their pants hoping he doesn't sue, because they have a pretty good idea how many figures they'll lose if he does.
I would also strongly urge Mr. Coulton to file a proper takedown request with Apple. This forces Fox to put all their cards on the table, and gives them notice that you intend to take action if they don't come to a reasonable settlement. It also takes their content off of iTunes for at least a few days, during which they're losing a metric f**kton of sales. This has a tendency to force their lawyers to take your claims seriously, where they otherwise might not.
That said, IANAL, and this is not legal advice except for the the "you should contact a copyright lawyer" bit.
Check out my sci-fi/humor trilogy at PatriotsBooks.
We aren't talking about someone doing a 'similar' cover, we are talking about Fox, by all appearances, using his Karaoke track verbatim against his license and singing over it. Hell, even the lyrics kept "Johnny C's in trouble" instead of the original lyrics. Analysis suggests they even had to work a bit to try to edit out a duck quack from his track, but still left some sign of that quack behind.
In fact, reports are that the show lifts a *lot* of differently done arrangements of well known songs done by obscure people without permission without a shred of apologetic tone or credit given.
But at least it is equal opportunity, a fair number of more well known musicians whose songs have been featured aren't exactly pleased to hear their works crop up in that show either.
XML is like violence. If it doesn't solve the problem, use more.
What Glee released is not a "cover." It actually samples his recording.
And Coulton's version isn't just a cover either. If you listen to the Sir Mix-a-Lot version and then to the Coulton version, Coulton's puts the lyrics to a melody that wasn't there in the original rap song. Coulton owns the copyright of this melody.
Find free books.
Actually, as I noted elsewhere, Coulton explicitly states on his online store that his covers are not CC-licensed.
Coulton got the ok to do a version of baby got back. He did a new and unique arrangement and performance. Glee did an identical rip-off of his song without permission, then aired it and put it on itunes for purchase.
Original: http://www.youtube.com/watch?v=kY84MRnxVzo
Coulton's: http://www.youtube.com/watch?v=MCWaN_Tc5wo
Glee rip: http://www.youtube.com/watch?v=Yww4BLjReEk
You'll notice the second two are identical and very different from the first.
In copyright law (and in most, if not all, areas of IP) there is a defense called "equitable estoppel." The copyright owner's lack of action against an alleged infringement that he or she knows about can sometimes be interpreted as permission to continue use. There's also a defense called "laches" (pronounced: "latches") which can be employed in response to unreasonable delays in prosecution.
There is separate licensing for covers and derivative works. Coulton only got a license to cover, although his certainly an original take on it, he has no special ownership over his version, anyone else getting a license to cover can perform a version identical to coultons.
Except the Berne Convention gives him copyright over the derivative work. They cannot just steal it and say "welp, it's a cover, so you have no rights." Especially since it's an original arrangement (he didn't just sing along to the original instruments).
And it's not that they just got a licence and decided to do an acoustic, folk-like version like Coulton did. They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line (whereas the original was "Mix-a-Lot's in Trouble"), and this is key: On top of his original instrumental track.
They blatantly stole a song online, are attempting to profit from it, and oh yeah, the producer for Glee basically taunted Coulton on Twitter, suggesting he should be happy he got ripped off.
Oh, and did I mention that this isn't the first time they've done it? By far?
They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line
Although the Glee version is a very close reproduction, I don't think it's done by channel phase inverting trick because that technique results in a mono backing track, and their backing track is clearly stereo. Plus if you listen closely on headphones you can hear they're using different drum samples and the instruments sound a bit different.
However, it's worth noting that the only thing used in Jonathan Coulton's cover from the original is the lyrics. The cover has completely new chord progression and vocal melody that doesn't exist in the original rap at all. Essentially in this case the "cover" is a completely different song with the lyrics from "Baby got back", so I think it's still a clear copyright violation regardless of how they reproduced Coulton's music.
Here's a version where someone synched up the two versions via the first few instrumental hits at the start of the song:
https://soundcloud.com/alacrion/joco-v-glee
Literally they are note for note the same as far as instrumental bits go. Ok, there are SMALL differences are when they used the audio version of a poorly done photoshop job to remove certain elements, like the duck quacking (which can still be heard, faintly), but, that's just me.
And yeah, it's a clear copyright violation. And the guys from Glee should know better. However, I *believe* their stance is that JoCo is just some silly little Internet artist and they can get away with this because what can he do, eh?
I personally think they vastly underestimated how big his followings are on the Interwebs, and how loud us computer nerds can be when we feel one of our own (remember, Coulton was a Slashdotting computer programmer before making it big as a musician) is being thrown under the bus.