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It's pretty brave for Glee to piss off the Internet.
Anyone who's experienced with this area of the law care to comment?

Does he hold the copyright to the original melody he composed for this song?

Does that fact that he released a karaoke version without the vocals affect anything?

Is his melody considered an "arrangement" of the original considering the original had no melody?

If I write an original instrumental song, do I lose the copyright to the instrumental by releasing a version that includes someone else's lyrics?

The comments over there explain this pretty thoroughly. Short answer is No, he holds no copyright to the original melody.

Interesting final question though - no, you don't lose the copyright to the instrumental, but I'm not sure of the proper way to describe the new arrangement of the song.

> but I'm not sure of the proper way to describe the new arrangement of the song.

To me it doesn't seem like a new arrangement of the song because it sounds absolutely nothing like the original, he basically copied the lyrics only, even the cadence was different. If I write a melody to someone's spoken word poem, is that a new arrangement?

I guess it depends on if they were able to previously publish that spoken word poem as a song, and if you are in turn licensing it through the Harry Fox Agency.

If it's instead just lyrics that you write a melody to and it is unpublished so far, then you could be co-writers before the song is published.

Are you sure? I'm an IP lawyer, and even i'm not sure of the answer.

1. There is a very weird set of rights around music/sound/synchronization built into copyright law 2. I would never trust random commenters on the internet, even those experience in music, to know the answer.

Why? Because of how this stuff actually works in practice.

People assume that "Fox surely did this right before they did this", except, you know, they often don't.

When they want to use a track, they just use it, and then throw it on the uncleared list and get around to figuring it out later.

This is because they've made a licensing/etc scheme that is so convoluted, that often nobody knows who to contact to get all the rights necessary (ASCAP/NMPA et al are sometimes helpful, sometimes not)

In some types of cases, there are compulsory licenses, in some, there aren't.

Yeah, obviously I'm not "in the know" regarding what steps Fox might have skipped. I just know that:

a) If a song is published (and BGB was) then anyone has the right to cover it (a compulsory license always exists)

b) If someone covers it, the covering artist gets no copyright of the musical material - all that is retained by the song copyright owner(s). (This makes intuitive sense, as it otherwise would restrict the ability of other artists to create more covers of the song. You'd have to make sure that your arrangement choices didn't conflict with ANY other arrangements out there.)

c) The covering artist does have copyright over the sound recording of the arrangement.

Now, if techie people wanted to get involved in a way they could actually affect things, rather than just theorizing about what someone's actions/motivations might have been, there's opportunity here:

Coulton released a karaoke track of his version of BGB. It's released by-nc-sa. It's considered likely that Fox used this karaoke track as the backing track for their version. If so, they have infringed on all three portions of the license (no attribution, they're selling it, they didn't release it share-alike).

So - I don't know how to do this, but it seems like someone could do a statistical analysis of the karaoke track, and Fox's version, and prove within some statistical likeliness that Fox used the karaoke track and did not simply re-record their own instruments. (Note that it WOULD be legal for Fox to re-record Coulton's arrangement note-for-note since it would no longer be using Coulton's sound recording.)

(comment deleted)
I can't find where that is explained thoroughly. This was claimed but not explained very well in the comments on the article. If I write some music and then later put out a cover version of another song set to that tune, how do I lose my copyright on the music I wrote?
Well, all kinds of weird cases can happen and I guess that's why lawsuits can happen, to tease out those kinds of distinctions. My guess is that you'd retain the copyright for your music but other people could still cover that song in the same way you did without paying you or getting permission.

I think the more disturbing question is, what if someone takes Coulton's original tracks to the song (they're available), re-records them (I could easily do it with my keyboard and some software samples), and does everything exactly the same except for singing "blah blah blah"? Sounds like that person could claim the entire resultant copyright and not owe Coulton, BGB, or Fox/Glee a damn thing.

It certainly is an interesting case study on the finer points of licensing. I agree that unless they used parts of Coulton's actual audio (as opposed to recreating it), Fox is totally in the clear here, by the letter of the law. But still, what a dick move.

Not the first time it's happened, either. Friend of mine had one of her a cappella arrangement "ripped off" without credit too.

Just goes to show... if you're a creative musician, invest that creativity in originals.

Last question - how was Coulton going to get any exposure hit from this at all if there wasn't a stink raised? You'd think the morons over at Fox would do a little spreadsheet analysis and realize that might actually be more profitable to just put his name in the credits as "Guest Arranger" or something.

Coulton stated that he licensed Baby Got Back and wrote an original melody. I suspect that they are very much not in the clear.
Mechanical license means that your derivative work's copyright is still owned by the original publisher, including any "original melody".
That's absurd. There's no way the melody would fall under the mechanical license for the lyrics. Why would it?

The lyrics and musical arrangement are clearly distinct entities.

From what I understand it's part of the conditions of getting the mechanical license through HFA. It might be conceptually absurd, but that doesn't mean that's not how it works.
Obviously you don't need a license for your own work. JC's license would be for the lyrics and nothing else. Everything else is his.

Image I author a book that contains the lyrics as a component. I would need a compulsory mechanical license, right? But does the rights holder own my book now? Of course not.

The melody in this case is not a derivative work. It has nothing to do with the the original work (i.e., lyrics).

I think "Paul's" comments in the original thread have it right. I am not a lawyer, but I am a songwriter and have researched this a lot in the past. It's complicated enough that it's easy to forget the particulars, but the general upshot is that if you do a cover, no matter how creative your cover is, you basically have no rights except for the sound recording.

Your book example is a different question entirely.

Look at it this way. You can also take a song with a melody, and completely alter the melody into something entirely different, but it doesn't mean that you get a songwriter credit on the new version. If it did, people would be doing this all the time. And the original version of the song isn't "half a song", as in everything but a melody - not legally speaking. If that were true, we'd have thirty years now of people trying to write melodies for already-released rap tunes, in an effort to get their financial cut.

So legally speaking, putting a melody on a rap tune still only yields a derivative work. Coulton has no rights as a songwriter in this case.

Again though, if Fox took the audio to his backing track... that's a different matter entirely.

One big asterisk, though. It might be too late for this, but Coulton arguably could have gathered more leverage had he called his version a parody. But that's a really high bar, because for it to be a parody, it would have to implicitly comment on the previous work, thereby transforming it. As opposed to a simple satire, which "builds on top" of an existing work. A parody is protected by fair use, and it is possible to copyright the original parts of the parody. So if he had been able to argue that his song was a parody, he could have copyrighted the melody. And given that Coulton's artistic choice was limited to putting a nice melody on top of a rap tune, I doubt that would hold up in court, because it would set a hell of a precedent to all the other rap tunes out there.

Thanks for explaining. I think I understand a little better now.

This Wired article also helps,

  Coulton said that while his lawyers have been looking
  into the copyright issue, it seems unlikely that he
  will have any legal recourse. ”It seems that because of
  the compulsory license I purchased when I made a cover
  of this song, the arrangement itself is not protected
  under copyright, although it’s the darkest gray of the
  gray areas [of the law]… While there may be some weird
  offshoot of the law, it doesn’t seem like something
  where a little guy could sue to get any satisfaction.”
http://www.wired.com/underwire/2013/01/jonathan-coulton-glee...
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My favorite of the comparisons is this one:

https://soundcloud.com/alacrion/joco-v-glee

Jonathan Coulton in the left ear, Glee in the right ear.

That's actually quite a nice harmony.

Of course, the reason for the harmony is because the vocals align so (almost) perfectly, creating an effect familiar to most musicians, who rely on it for ensuring that their instruments are in tune.

That's how perfectly the two align. Damn.

Wait, now I'm confused. I thought data wanted to be free and copyright laws were archaic and meant to be broken? Someone set me straight, quick!
The outcry here is less about whether copyrights are being respected, than about whether copyrights are being respected by people who insist that you must respect copyrights.
Also there are plenty of us that are pro-reform and anti-outrageous lawsuits who are also against the infringement as well.

When I see a large player in the industry fuck up and "steal" someone's copyrighted work, it's yet another example of how they don't give a shit about artists, despite what they claim. These incidents are perhaps a good way to show the public what large media corporations are really concerned with; making money for the execs at the expense of anyone else. If the public is aware, maybe we'll have better success at reforming copyright and other IP laws. (Although I cannot deny there is the schadenfreude aspect of it also.)

But please note the scare quotes, because it's not a theft, due to the exact reasons I would argue regarding any other two entities with copyright disputes.

I believe the phrase is: "live by the sword, die by the sword".
Depends on who you ask, Hacker News isn't a hivemind.

If you were to ask Fox though, I'm sure they'd insisted that copyright laws are important and should never be violated.

> Hacker News isn't a hivemind.

Are you sure?

Are you saying you disagree? Because that sounds willful.
If the entire cast and crew of Glee were pirating JoCo's tracks I doubt he would care, this is not that.
JoCo is an artist with massive geek cred (sells songs from his own site DRM free, tours with John Hodgman, sings about code monkeys and other geeky things).

Glee is part of News Corp.

:)

More seriously, JoCo is aware of the unfavorable legal situation given that his work was a cover. But the way he sees it, it'd be nice if he got something from Fox. Attribution, for example -- credit for his arrangement of the song. Glee/Fox was unwilling. I do not know why.

Well it seems like the main concerns are the fact that nobody got JoCo's approval before moving forward and there does not seem to be any attribution.

I don't entirely agree with the outrage but the fact that this is done by Fox who are real jerks about their own copyright really sets off the hypocrisy alarm.

Piracy is a bit more forgivable than reselling someone else's work.
Most online piracy is some asshole reselling someone else's work on a website full of ads, charging subscriptions, requiring donations, etc.
1. It's plagiarism, not just copyright infringement. It is (or was, not sure it's still up) labeled "Baby Got Back (Glee version)", on the Swedish iTunes store, Coulton is not credited at all.

2. It's being sold for a profit...

3. ... by people who sue others for disproportionate sums, for sharing stuff for free.

Coulton actually published a karaoke version of the song, they just added a new, almost identical vocal track.

Like many, you may have confused copyright law with ordinary respect and decency.

Personally, I'm against any and all forms of copyright. That doesn't mean I cannot consider people that pass of other people's work as their own to be complete assholes.

Also, there are plenty of other laws to cover that. IANAL, but I'm thinking of plagiarism, forgery etcetera.

>Also, there are plenty of other laws to cover that. IANAL, but I'm thinking of plagiarism, forgery etcetera.

Actually, plagiarism is not, as far as I know, a legally recognized concept. If you want to go after someone for plagiarism, you're going to have to pound that screw in with the hammer of copyright law.

There's more than one way to violate intellectual 'property' rights, and they need (or at least should) not be treated identically.

A (probably) incomplete list I just pulled out of my a^w head:

  1. plagiarism
  2. espionage
  3. for-profit pirating
  4. non-profit pirating
  5. willful patent infringement
  6. accidental patent infringement
Every goddamned time an issue of plagiarism comes up, some clever person comes and says "I thought you guys loved piracy! How is this different?"

And the difference is about as profound as the difference between downloading a file and stealing a bike. The main reason that this is so appalling, while file sharing is not, is that it's a case of someone taking credit for someone else's work. There is a huge difference between taking someone else's work and saying "Hey, listen to this cool cover that JoCo did" and taking it and saying "Hey, I wrote this cover of Baby Got Back!"

Another big difference is profit. I think most of people feel like downloading a song or movie for yourself and maybe some friends and enjoying it is fine, and that a site like The Pirate Bay covering their bandwidth costs with ads is totally understandable. But I think most people also think that a guy who burns movies to DVDs and sells them on the street corner is an asshole.

Finally, especially in light of that latter point, you've got one of the big media players, all of whom have lobbied hard for stronger copyright law, refusing to play by the same rules that they want to impose on everyone else.

>But I think most people also think that a guy who burns movies to DVDs and sells them on the street corner is an asshole.

Do you actually think that? All that talk on HN recently about the new megaupload would have me think the opposite, unless MU's bandwidth costs were a quarter billion dollars.

> one of the big media players, all of whom have lobbied hard for stronger copyright law, refusing to play by the same rules that they want to impose on everyone else.

"Neither a pirate nor a hypocrite be." -- Shakespeare [citation needed] [dubious, discuss]

Ah yes, the inevitable "you hipocrites!" comment, from someone who has such a black and white view of the world, it's surprising they aren't constantly bleeding from being cut on all the sharp edges.

You know, maybe some of us have a more nuanced view of how things should be. Maybe we think that the people that actually create something (you know, the artists?) should at least get credit; maybe not rewarded indefinitely, but at least given a chance in the market, while not wanting to see their grandchildren leach off a government granted monopoly. Maybe we are in favor of artists who obviously get it (JoCo sells his music with no DRM, in any format you want, not to mention plenty of free samples) not being plagiarized by huge media conglomerates run by ruthless fatcats without an ounce of creativity, who are still stuck in the mindset of being the gatekeepers.

Or maybe we're all just spoiled hypocritical children like you've painted us. Yeah, that must be it.

Should at least get credit? You are against piracy then I hope. Most content creators when they put a product out asking for money consider you legally paying them their asking price in exchange for their product as "credit".

Also when did a handful of writers at Glee become the stance of the whole Newscorp evil empire? Until every decision by every subordinate is reviewed by Murdoch or the Board of Directors for possible copyright infringement painting Fox as a whole responsible as part of their normal MO is false.

>Most content creators when they put a product out asking for money consider you legally paying them their asking price in exchange for their product as "credit".

It sounds like you are willfully misinterpreting the concept of "giving credit". Paying for something is compensation, not credit. The concept of downloading something without paying for it is totally unrelated to the concept of claiming that you created someone else's work.

Credit in this case means attribution. Pirate sites don't say "I made Game of Thrones" or rename it and try to pretend it's their own work. They present it as "This movie, released by whatever-group". People get far more upset about "stealing" attribution than copyright infringement.
That's a nice way of self justifying piracy. I'm sure content creators get just as pissed when people don't pay for their work too when they are asking you to do so.
So copyright is defensible when the artist "gets it," and the infringer is a "fatcat." But not otherwise.

Got it.

Did you read the rest of that sentence, or did you just stop when you thought you'd nailed the commenter, and completely ignore everything else s/he said?

It was the second one, wasn't it?

No, I read the whole sentence. I didn't think (and still don't think) that it changes what I was saying. Here it is in its entirety:

Maybe we are in favor of artists who obviously get it (JoCo sells his music with no DRM, in any format you want, not to mention plenty of free samples) not being plagiarized by huge media conglomerates run by ruthless fatcats without an ounce of creativity, who are still stuck in the mindset of being the gatekeepers.

Please, enlighten me as to what I've missed.

You've missed the part where plagiarism is not the same thing as copyright infringement.
In all fairness, I did use a lot of big words; perhaps monochromatic doesn't understand the meaning of the word "plagiarize". There's also that moniker; I wonder if it is arbitrary or chosen on purpose . . .
Oh I understand the difference. But I thought there was still some hypocrisy in your "it's not hypocritical" post.

As for the moniker, it's a Calvin & Hobbes reference.

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"They also got in touch with my peeps to basically say that they’re within their legal rights to do this, and that I should be happy for the exposure (even though they do not credit me, and have not even publicly acknowledged that it’s my version – so you know, it’s kind of SECRET exposure)."

Source: Coulton's blog http://www.jonathancoulton.com

I love how few people mention Sir-mix-a-lot -- You know, the guy that actually wrote the song and popularized it. The Acoustic-version-of-hip-hop song genre is not terribly original, and even predates youtube considerably. I have a hard time feeling sympathy for either one of these cover artists.
Well, you know who does mention Sir-mix-a-lot? Jonathan Coulton: he does explicitly state his song is a cover. He wrote a new melody, which the Glee people used but did not acknowledge. I'm not sure what Glee's position is, maybe they claim they are covering Sir-mix-a-lot and happened to make the same arrangement and write the same melody that Coulton did.
Doubtful, since they also happened to change the lyrics to say "Johnny C's in trouble"
As someone who's unfamiliar with none of the original song or either of the covers, it took me until 2:25 to figure out when it alternated between the songs.
If it's true that the copyright to the derivative work becomes the property of the original copyright holder, then it would seem as if a simple hack could be used by cover-song creators to avoid being Coultoned:

Nominally release a version of the song with the original arrangement and original, throwaway lyrics prior to releasing the version with the original arrangement and derived lyrics.

That way, the cover song is a derivative of two original works, and in order for an entity like "Glee" to cover your cover, they'd need permission from both of the copyright holders -- you (for the melody) and whoever owns the copyright to the lyrics.

Lawyerly types, am I on to something here?

JC bought a compulsory license to distribute his version of the song. That license effectively gives the copyright of his version to the copyright holder for the original version.
But what I'm proposing is to gain the rights to create a derivative work based on TWO original works. So, the copyright of the derived work would be assigned JOINTLY to the copyright holder of the original arrangement (the artist himself) and the copyright holder of the original lyrics.
That's not an option in the license he bought. I guess you could imagine all sorts of creative arrangements, but the license under which this work was available required him to forfeit the copyright of the derived work. Adding a second original work to the mix wouldn't solve that problem.
One strange aspect of the use of the compulsory licence. If the cover creates a new melody, and all the (composition) copyrights stay with the original author, in that case the original author would seem to gain an expanded set of rights including the copyright on the new melody.

Another strange twist in the area of compulsory licence is that it only applies to fairly close versions. If you want to make a truly derivative work, in my understanding, the compulsory licence doesn't apply: You have to negotiate a special licence from the copyright holder. For example if you want to change the words.