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Jonathan Coulton Song Used By Glee Without Permission 307

Posted by timothy
from the perhaps-they-can-call-it-willful dept.
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."
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Jonathan Coulton Song Used By Glee Without Permission

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  • by whoever57 (658626) on Friday January 25, 2013 @08:41PM (#42697443) Journal
    What, did anyone think that copyright was intended to protect anyone except the rich and powerful?
    • by dgatwood (11270) on Friday January 25, 2013 @08:55PM (#42697567) Journal

      This is the point at which he should submit a DMCA takedown request to Apple [apple.com].

      • by Anonymous Coward on Friday January 25, 2013 @09:29PM (#42697793)

        Screw that, this is where you go Bittersweet Symphony on their ass..

        http://en.wikipedia.org/wiki/Bitter_Sweet_Symphony

        Rolling stones bent over The Verve and took all the money generated from their #1 hit because it contained "too much of a sample" that they had licensed.

        I say let this track run iTunes, and then sue them for all the money it generated.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          IANAL, but if you believe your IP is being violated, wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money? Especially since this guy is on the books as having noticed his IP is being violated.

          • by phantomfive (622387) on Friday January 25, 2013 @11:27PM (#42698363) Journal

            wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money?

            Generally, no. In the specific case of trademark law, you can lose your trademark if you don't defend it, but with copyright and patents, there is no such 'problem'. Submarine patents are a real thing, look at the case of GIF.

            • by adamdoyle (1665063) on Saturday January 26, 2013 @03:33AM (#42699113)

              wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money?

              Generally, no. In the specific case of trademark law, you can lose your trademark if you don't defend it, but with copyright and patents, there is no such 'problem'. Submarine patents are a real thing, look at the case of GIF.

              If you know about copyright infringement and don't act on it, then infringers might be able to employ the defenses of "laches" (unreasonable delay) or "equitable estoppel" (misleading the infringers to believe you're not going to pursue them). I'm not familiar with the GIF case, but my guess is that they were able to show that they were still actively enforcing the patent (even if "actively" is an exaggeration).

          • by bondsbw (888959) on Saturday January 26, 2013 @12:25AM (#42698609)

            He contacted Fox. Everything is on them now. (And actually, it doesn't really matter whether he contacted them or not. But he probably has a more solid case since they knew of the infringement claim and continued to infringe.)

            • And Fox has contacted back ( http://www.jonathancoulton.com/2013/01/18/baby-got-back-and-glee/ ) to tell him he should be grateful for the exposure they gave him. You know, that exposure they gave by using his arrangement without any credit whatsoever. The Super Secret Exposure. I wonder how grateful Fox is for the exposure that a Bittorrent user gives them by sharing out full episodes of Glee.

              It almost makes me want to start watching Glee just so I could stop watching them in protest.

        • by Pax681 (1002592) on Saturday January 26, 2013 @01:53AM (#42698851)

          Screw that, this is where you go Bittersweet Symphony on their ass..

          http://en.wikipedia.org/wiki/Bitter_Sweet_Symphony

          Rolling stones bent over The Verve and took all the money generated from their #1 hit because it contained "too much of a sample" that they had licensed.

          I say let this track run iTunes, and then sue them for all the money it generated.

          They Also did the exact same to Carter the Unstoppable Sex Machine over the song After The Watershed [youtube.com]
          They took Carter for a sizeable sum of cash and Jagger then got writing credits as well. apparently the song also contained a bass riff from "satisfaction"
          Carter then pretty much used the money from their next album to pay the rubber lipped old twat linky [wikipedia.org]

      • by _KiTA_ (241027)

        This is the point at which he should submit a DMCA takedown request to Apple [apple.com].

        And Youtube, obviously. And most importantly: Hulu and any other sites that host Glee on demand -- Fox, for example. Dish and DirectTV also have on demand access, are they susceptible to DMCA requests?

        • Not sure here, but if I recall correctly all Fox would have to do is file a counter notice and then the on demand sites could put it back up and be out of the lawsuit loop. Then he would have to sue and win and get the courts to order it removed. This makes it a question of affording sufficient lawyer to win.
              Being right, and obviously so, doesn't guarantee a win, just multiplies your lawyer money.

          Mcyroft
    • by Kenja (541830)
      I would argue that this was fair use. It was "baby got back" with banjos sung by white guys. If that's not a parody I dont know what is.
      • by NemosomeN (670035) on Friday January 25, 2013 @10:54PM (#42698205) Journal
        Parody is protected as fair use. Copying parody is not.
      • by Anonymous Coward on Friday January 25, 2013 @11:43PM (#42698455)

        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 [youtube.com]

        Coulton's: http://www.youtube.com/watch?v=MCWaN_Tc5wo [youtube.com]

        Glee rip: http://www.youtube.com/watch?v=Yww4BLjReEk [youtube.com]

        You'll notice the second two are identical and very different from the first.

        • by C0R1D4N (970153) on Friday January 25, 2013 @11:59PM (#42698517)
          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.
          • by modmans2ndcoming (929661) on Saturday January 26, 2013 @01:01AM (#42698731)

            I think the issue is less that they didn't pay him and more that they are fronting as if they came up with it rather than giving him the professional courtesy of credit.

          • by _KiTA_ (241027) on Saturday January 26, 2013 @04:14AM (#42699205) Homepage

            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?

            • by Paul Slocum (598127) on Saturday January 26, 2013 @10:13AM (#42700181) Homepage Journal
              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.
              • by _KiTA_ (241027) on Saturday January 26, 2013 @12:20PM (#42700771) Homepage

                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 [soundcloud.com]

                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.

        • by xenobyte (446878)

          Hehe... The original actually samples 2 Live Crew's "Me So Horny", which in turn... Nah, enough is enough. Everybody samples each other. Stop arguing about money and just give credit, okay?

    • by jamstar7 (694492)

      What, did anyone think that copyright was intended to protect anyone except the rich and powerful?

      It's not????????

    • Re: (Score:3, Funny)

      by Chelloveck (14643)
      Bah. An unknown like Coulton should be paying Fox for the nationwide distribution on a hit TV show.
  • speed of takedowns (Score:5, Insightful)

    by v1 (525388) on Friday January 25, 2013 @08:43PM (#42697455) Homepage Journal

    interesting to see how a joe average gets smacked down like a gnat with a buick on youtube, but then we see the exact opposite here? Or didn't they file a takedown notice?

  • Old news (Score:2, Informative)

    by mveloso (325617)

    http://www.theverge.com/2013/1/18/3891836/glee-uses-jonathan-coultons-cover-of-baby-got-back-without-permission [theverge.com]

    There's no protection for a cover. However, the Glee people weren't nice because they didn't credit him for his ultra-boring cover of a great song.

    • Re:Old news (Score:5, Informative)

      by spazdor (902907) on Friday January 25, 2013 @08:53PM (#42697537)

      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.)

      • Re:Old news (Score:5, Informative)

        by bcrowell (177657) on Friday January 25, 2013 @09:52PM (#42697905) Homepage

        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.

    • by Brucelet (1857158)
      When the news initially broke last week, it wasn't officially confirmed that they were going to use the song. This Slashdot post comes after the relevant episode has aired and the Glee version of the song put up for sale on iTunes.
    • by nedwidek (98930)

      I will quote the article, which does indeed quote Title 17, section 115 (copyright law compulsory license). The author bolds the parts he thinks are important and ignores the whole middle including a very important part that I will bold.

      "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

  • Creative Commons (Score:4, Informative)

    by MoonRabbit (596371) on Friday January 25, 2013 @08:45PM (#42697467) Homepage
    specifically, the license Jonathan Coulton uses, allows for noncommercial use. Anyone want to argue that this is non-commercial use?
    • Re:Creative Commons (Score:5, Informative)

      by MrEricSir (398214) on Friday January 25, 2013 @08:49PM (#42697513) Homepage

      Huh? "Baby Got Back" is most certainly not licensed under Creative Commons.

      • Re: (Score:2, Informative)

        by eksith (2776419)
        Yes, but he bought the rights to do the cover. The cover version is licensed CC.
      • The arrangement that Jonathan Coulton created is licensed under CC. They went so far as to lift the banjo tracks from the karaoke version. The killer is JoCo would probably have been fine with it if they had given him credit for the arrangement.
        • by Dahamma (304068)

          Actually, no. If you look up the law, arrangements are not owned by the arranger, they are owned by the original copyright holder. Even Coulton said as much in TFA.

          Now, IF they sampled his actual audio (the "mechanical copyright" in legal terms) then that would be copyright infringement. It's possible they did that, but will be pretty hard to prove definitively...

          • by Brucelet (1857158)

            Now, IF they sampled his actual audio (the "mechanical copyright" in legal terms) then that would be copyright infringement. It's possible they did that, but will be pretty hard to prove definitively...

            Hard to prove, but there's certainly a lot of evidence that they did.

          • by shentino (1139071)

            A derived work can still be infringed.

      • by icebike (68054)

        Effectively, it is: See the Verge [theverge.com] for a discussion. Unless they used his actual voice, he has no leg to stand on.

  • IANAL. According to the article, because it's a cover it's not really covered by copyright law. However, since they also used Coulton's unique additions to the song (eg. 1-800-JONNIEC instead of 1-800-MIXALOT), and possibly stole his audio, I think he would have a pretty strong case on those grounds. Now, enough to overcome Fox's lawyer army? Maybe not.

    I don't really see how the melody he wrote for the song is not covered though, that isn't a copy of the original song at all. A song is not solely com

    • by spazdor (902907)

      since they also used Coulton's unique additions to the song

      irrelevant

      and possibly stole his audio

      super, super relevant. Everyone in this post who is glossing over that part is completely missing the point, legally speaking.

    • Their's goes 1-800-Jonn-ieC. His goes 1-800-JonnieC.
    • by dgatwood (11270) on Friday January 25, 2013 @09:26PM (#42697779) Journal

      According to the article, which was written by someone who knows nothing about copyright law, because it's a cover it's not really covered by copyright law.

      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.

      I don't really see how the melody he wrote for the song is not covered though, that isn't a copy of the original song at all. A song is not solely composed of lyrics.

      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.

  • ...yet ASCAP and BMI frequently go after those who allow public domain music to be played claiming the arrangement was copyrighted by one of their members (and it's up to you to prove it wasn't)

    Just more proof that copyright is only for the big guys.

    • Just more proof that copyright is only for the big guys.

      As was and ever shall be. Look up the history of the concept. From the very beginning, it was invented to allow publishers to sue other publishers for releasing the same work. Never, in all its history, was it ever created to benefit artists.

      The idea that copyright was invented for artists is one of the biggest of the Big Lies plaguing society, and it's a lie that's literally hundreds of years old.

    • The thing is that TV has MANDATORY licensing... So FOX doesn't technically have to "prepay" or ask to use any music they want. The INDIVIDUAL stations punch their cards and turn in X royalties per musical number for every Commercial and Show they air.... This avoids the "YouTube" problem, of infringing background music, everybody keeps bringing up.

      He can probably get the song taken down from iTunes as that is a seperate distribution.

  • by Junta (36770) on Friday January 25, 2013 @09:36PM (#42697831)
    A show with a reported 3.5 million dollar an episode budget can't even be arsed to let artists know their stuff is going to be used....

    All of these people being stolen from would be content with so little as an off-screen credit through some blog post or something. If they wanted to be decent human beings, they would have thrown in an on-screen one liner mentioning the names of the people that are actually responsible for the arrangements, rather than trying to perpetuate the lie that the people behind that show have even an ounce of original musical talent.

    All this stuff they could have done without spending so much as a dime...
    • by godrik (1287354)

      Despite I like JoCo and that I agree overall with your opinion. I think we should not forget that it is copyright infrigment, and not theft.

  • ... will end well. What could possibly go wrong?
  • Funny that a show about talented underdogs used its muscle to rip off the little guy. JoCo could fight this, but would be crushed under the weight of the FOX legal system. It's like being bullied in high school all over again. Irony.
  • The version as aired on TV is available on YouTube [youtube.com]. Interestingly, it adds a bit more backup vocals than the audio version, in particular drowning out any evidence of the duck quack, and has some cuts that, among other things, avoid the "Johnny C" line.
  • by BenSchuarmer (922752) on Friday January 25, 2013 @11:20PM (#42698319)

    They stole Greg Laswell's arrangement of "Girls Just Wanna Have Fun" about a year ago.

    http://www.pleasewelcomeyourjudges.com/2011/11/greg-laswell-not-glee-ful-about.html

  • Time for Payback (Score:3, Interesting)

    by mlookaba (2802163) on Saturday January 26, 2013 @01:08AM (#42698757)
    Jonathan Coulton is a member of the geek community with honors. He's given to us often, and freely.

    I hope someone with lawyer skills steps up to help pay back the debt. Let me know where I can donate.
  • by Areyoukiddingme (1289470) on Saturday January 26, 2013 @02:08AM (#42698881)

    There is (or was) a YouTube artist who called herself Venetian Princess who took recordings of songs and sang her own parody lyrics over the top of them. (For those keeping track, when Weird Al does a parody, he records his own version of the music, thereby avoiding this problem.) Unfortunately for her, that's infringement, of precisely the type Fox has committed. She got crushed like a bug. Her videos were yanked off of YouTube and the lawyers ate her face.

    So.... we're waiting. We can expect every Glee episode to be yanked for alleged infringement now, right?

    Right? ...

    *crickets*

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