Joco vs. Glee

With all the controversy surrounding Glee’s ripoff of Jonathan Coulton’s Baby Got back I thought I would makes a remix that combines the two versions. The remix alternates between the two songs, beat by beat.

At first I thought I had a bug and only one of the two songs was making it into the output, but nope, they are both there.  To prove it I made another version that alternates the same beat between the two songs – sort of a call and answer. You can hear the subtle differences, and yes, they are very subtle.

The audio speaks for itself.

Here’s the code.

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  1. #1 by Brian Utterback on January 25, 2013 - 10:33 am

    It seems likely that the producers of Glee have paid for a mechanical license for the music. It is hard to imagine a show like Glee not getting that right. If so, what is the fuss about? It seems likely that Jonathan Coulton is entitled to a cut of that fee, but then the beef would be with the Harry Fox licensing agency, not Glee.

    • #2 by danielfrench1988 on January 26, 2013 - 9:53 pm

      Actually no mech. license is required, as Coulton’s song was a cover and cannot be copyrighted as a derivative work. Glee must pay royalties to Sir Mixalot (just as Coulton did), and can steal Coulton’s arrangement pretty much without penalty.

    • #3 by Adam C on January 27, 2013 - 6:14 am

      It’s less about legal recourse (of which he has little) and more about right and wrong. They could have credited him, or done a hell of a number of things to foster good will about this, and they didn’t. They even stole the Johnny C’s line and duck quack gag, it’s just shameless.

      • #4 by Paul on January 27, 2013 - 2:55 pm

        Honestly, it’s strictly about licensing and how licensing works. When JoCo signed the mechanical license agreement, it said “your arrangement now belongs to the original writer and publisher” — he would’ve agreed to that and signed it, and has been paying the required royalty on that agreement since 2005. Everyone involved has played by the rules: his “Johnny C” line and duck quack are additions that he made to the song that now belong to the original writer and publisher of “Baby Got Back.” GLEE can’t approach JC to clear something to which he has no legal rights: they can’t enter into a contract with him for anything because he doesn’t own anything. (except for his original master recording). A lovely resolution here would be for the publisher and writer of this song to donate at least a portion of their royalties (on license fee and downloads of the song) to JC as a gesture of goodwill. Do you think they will?

  2. #5 by creaturesh on January 25, 2013 - 11:01 am

    Brian, Jonathan Coulton wrote the melody and arrangement of this version. It does not use the original melody of Sir Mixalot’s song at all. If they had acquired all of the proper authorization, Coulton would have to know about it and receive a cut. Which is not happening.

    • #6 by Paul on January 27, 2013 - 2:57 pm

      This is incorrect. Any alterations that JC made to the song would belong to the publisher and writer of the original “Baby Got Back.” JC would have signed an agreement stating this when he received the mechanical license to the song in 2005. According to that Harry Fox license (which JC would have signed and been fully aware of, and has been paying royalties on since 2005) the original publisher/writer of the song would own JC’s version 100% including any changes he made to it. See post below showing standard language for all mechanical licenses.

  3. #7 by Alice on January 25, 2013 - 11:06 am

    I am really dismayed how people are so willing to ignore the huge moral quandary of taking someone else’s work, failing to attribute it while simultaneously making a handy profit from it, just because the original artist may not have a full legal recourse.

    Why does it matter if Glee/Fox has a legal obligation to pay royalties? What they have done here is unacceptable and it continues a pattern of large corporations feeling as if they are entitled to use whatever music or art they choose with no consequences.

    • #8 by Fishtails on January 28, 2013 - 4:33 am

      Because the world does not work that way sadly. Just because you have your set of morals to live by does not mean they will have the same set of morals, abide by the rules, be fair, and do something they know is wrong. We’re taking about Fox here. With them, morals mean absolutely nothing to them. Fox only cares about bring in the dough as far as they’re concerned and keeping their fans happy to bring in more cash. Unless they broke a legal law or some sort of copyright, it’ll more than likely be overlooked by many people since most people will only brush it off as Jon getting recognition for it instead of Fox being in the wrong for it. I’ve heard a lot about it over the pass few days so I’m withholding any biased judgement until more details are out. I’m a big Coulton fan too and I hate that he’s not being properly credited for the cover he did but law is above morals when it comes to the entertainment scene sadly. If morals were law I’m sure millions of people would be in jail by now. So most of you need to stop thinking that morals hold higher than law because it never does.

  4. #9 by Brian UtterlyWrong on January 25, 2013 - 11:14 am

    Since a mechanical license only applies to mechanically-reproduced physical media (like a CD) it seems likely that you are wrong. Using his backing tracks on TV requires a synchronization license. Since they didn’t contact him, it seems likely that they did not get it right. And since they aired the episode, it seems likely that they do not care.

    What I find most distasteful is the lack of attribution. “This is a good thing for Coulton!” is a valid argument. But obviously it’s better for Coulton if his name is in front of the 5 million people who watch Glee instead of him remaining a footnote on niche web sites and “featured artist” at nerd conventions.

    Coulton’s in the awkward position of trying get Fox to do the right thing while straddling the slippery slope of copyright law, all while not alienating his fans — most of whom have an even stranger relationship with copyright law and attribution than Glee does.

    • #10 by Paul on January 27, 2013 - 3:15 pm

      This is a great summation of the quandry from a music publishing perspective, and it’s reflective of one of the things someone gives up when they record a cover song instead of an original song. In retrospect, JC will make more money and gain more fans from all the coverage in Wired & various outlets than he ever would’ve if he had had rights to his arrangement to begin with. But there’s no official road/outlet to use to credit him, from FOX’s perspective, because he doesn’t own any rights to his version. If they were to somehow accredit him, that would imply that he has some legal right over the song – stuff like that.

      The notoriously silent party in this equation is the writer/publisher of Baby Got Back (Universal Music & Ray Anthony) who own JC’s arrangement, who happily collected a fee for the use of the song on GLEE and who will collect 9.1 cents for every digital download of the GLEE version and the JC version. Wouldn’t it be nice of them to issue a statement saying they’ll donate their royalties for the GLEE use to JC, or to go so far as to issue JC a copyright to his own version?

      • #11 by brunsworks on January 29, 2013 - 10:47 pm

        Sir Mix-a-Lot’s birth name is Anthony Ray, rather than Ray Anthony.

        For me, this isn’t about the royalties (mainly because I’m not being stolen from here), but about due credit–and how badly 17 USC 125 is written. Copyright is supposed to support innovation, not crush it, but even though Jonathan Coulton wrote a completely new song that happened to use Sir Mix-a-Lot’s lyrics, he is entitled to nothing as the law is written.

        HOWEVER, there is at least one overlooked salient fact here: Coulton released a “karaoke” track separately, which only used one line (fair use, perhaps?) from “Baby Got Back,” and it seems likely that that’s what Fox pirated.

        At the very least, if they could refuse to put Coulton’s name on his own work, how could they legally put anyone else’s on it but Sir Mix-a-Lot’s?

      • #12 by brunsworks on January 29, 2013 - 10:50 pm

        Sir Mix-a-Lot’s birth name is Anthony Ray, rather than Ray Anthony.

        For me, this isn’t about the royalties (mainly because I’m not being stolen from here), but about due credit–and how badly 17 USC 125 is written. Copyright is supposed to support innovation, not crush it, but even though Jonathan Coulton wrote a completely new song that happened to use Sir Mix-a-Lot’s lyrics, he is entitled to nothing as the law is written.

        HOWEVER, there is at least one overlooked salient fact here: Coulton released a “karaoke” track separately, which only used one line (fair use, perhaps?) from “Baby Got Back,” and it seems likely that that’s what Fox pirated.

        At the very least, if they could refuse to put Coulton’s name on his own work, how could they legally put anyone else’s on it but Sir Mix-a-Lot’s?

      • #13 by Paul on January 31, 2013 - 2:40 am

        Hey Brunsworks, for some reason I can’t reply to your post, but I’ll just post it here:

        If JC released a karaoke track (instrumental only) he still needed to obtain a mechanical license from Universal Music/Mixalot (which he did). And if you’ve obtained a mechanical license and paid on it since 2005, you can’t suddenly try a fair-use argument (and there’s nothing fair-use-able about rerecording a song). What’s surprising to me is that no one has asked JC to show the copy of his mechanical license which would state, in the very first paragraph, that “your version becomes the property of Universal Music/Anthony Ray.” Before he’s painted as the victim-martyr of the internet era, shouldn’t someone establish the facts & establish what he agreed to?

        What I’d like to know is, where is the outcry in the direction of Anthony Ray/Universal Music asking them to donate their license fee from GLEE to JC? That would be a make-good from the entity that actually 1) allowed JC to rerecord BGB 2) collected the license fee for the JC use on GLEE — and they morally owe this fee to JC, clearly, because it’s his version that GLEE used. If anyone were to ask Universal for a formal statement, they would side with GLEE and say that JC is not entitled to anything, as they own the copyright to his arrangement. And they could produce the actual contract that JC signed that says so, in very clear & unambiguous language. So could JC, if anyone bothered to ask him to see it. It’s not convoluted legalese, it’s verbage that says “Universal Music Publishing will own the copyright to your cover version including any changes, revisions, etc that you make.” It doesn’t get clearer than that.

        The situation is a bummer, but here’s the deal: JC signed the agreement to rerecord Baby Got Back: he signed it knowingly. He’s a smart music-businessperson who knows his stuff & clearly knows what he’s doing. You can’t enter into an agreement, abide by it & become famous on it & make money on it ($500k/yr as several articles indicate) for 6 years, then suddenly decide that you don’t like the contract. JC’s name doesn’t belong on the song because JC signed a contract that assigned his version of the song to Mixalot, so it belongs to Mixalot. And it’s not about credit, it’s about collecting money, as JC seemed to acknowledge in his Twitter feed. They didn’t steal his melody or his lyrics, as he claims in one of his tweets: he assigned the copyright to those to Mixalot, then capitalized on his version of the song, became famous off of it, and used that as a springboard to let people hear his original work. For every 99-cent download of BGB that he sold, he got 70 cents from iTunes: he paid 9.1 cents of that to Mixalot, and he kept the rest. As someone who works in music publishing, it’s been frustrating to read articles from legitimate news outlets like Forbes and the WSJ that are simply echoing the “JC got ripped off” story without actually fact-checking to see if that’s the case or providing some context. Any responsible journalist should ask JC to see a copy of the contract he signed, which would put the whole thing to rest. Now JC is openly alleging that FOX stole his audio karaoke track. If that’s true and if that’s the case, then we’ll see a claim and a settlement arise from the unauthorized use of his master recording. But he has zero rights to his arrangement of “Baby Got Back” – he signed those away, as does anyone who does a cover of a copyrighted song. And the whole entire drama would stop if someone would just say, “Hey JoCo, can you post a copy of your BGB license on your webpage?” Them’s the facts.

        Paul C.

  5. #14 by Paul on January 25, 2013 - 11:53 am

    The fact here – and it’s moral-neutral – is that when someone does a cover of a song or an altered lyric or melody, that new version becomes the copyrighted property of the owner of the original version. So when a show like GLEE licenses that song from the publisher, the publisher is also licensing them any other versions such as JC’s – and that would be covered by the synchronization license they obtained for the song. So essentially there is no right to be cleared with JC because he doesn’t have any rights to grant. Now, if they used his actual audio track — that would require them to license master recording rights from him directly. The fact that they didn’t get that license from him means that they probably just recreated it themselves. In the world of copyright, you can’t obtain permission from someone who doesn’t have any legal rights to that permission, if that makes sense. It’s a moral-neutral thing… Just how licensing works.

    • #15 by Daniel on January 25, 2013 - 5:37 pm

      Do you mind explaining how legal-neutral = moral neutral?

    • #16 by Ray on January 26, 2013 - 1:51 pm

      Uh, that’s just blatantly false. If JC’s remix was unlicensed, then both JC and Mixalot (or their respective licensees/publishers/etc.) hold copyright over it, and neither can use or license it without the other’s permission, nor can any third party do so without the consent of both. If it was licensed, the terms of the license apply — and while they could have written a license granting Mixalot unrestricted rights to JC’s work, that’s neither standard nor automatic.

      Also, and unrelatedly, the laws of physics may be morally neutral, but the laws of humanity are not.

      • #17 by Paul on January 26, 2013 - 3:04 pm

        When doing an arrangement of a copyrighted work, that arrangement is a derivative work & becomes the property of the copyright holder of the original work. That’s just how it works. JC doesn’t have a copyrighted arrangement, because he can’t copyright an arrangement of a copyrighted song. He can copyright an arrangement of a public domain song, yes – but not of a work that is currently under copyright. The only part of the copyright in this equation that belongs to JC is the sound recording.

      • #18 by Paul on January 26, 2013 - 5:13 pm

        I’ll post here the standard language in any mechanical license agreement. This tidbit is normally the 1st paragraph of every mechanical license. You can find out more about this & copies of template agreements in books such as “This Business of Music” and “The Art of Music Licensing.”

        1. In connection with your exercise of the right and license granted herein, you shall have the right to make a musical arrangement of the Composition(s) to the extent necessary to conform the Compositions to the style or manner of interpretation of the performance and/or publication involved, provided however, that any such arrangement shall not change the basic melody or the fundamental character of the Composition(s). You hereby transfer and assign to Publisher(s) all rights, title, and interest in and to any such arrangement.

  6. #19 by ironcurtainyc on January 25, 2013 - 11:57 am

    Brian and creaturesh: From what I know about US © law (IANAL), a compulsory license is required only if you are selling a cover as a sound recording (e.g. Vinyl, CD, audiocassette, MP3, etc.). For synching the cover of someone else’s work in a show, you need to ask permission from the original songwriter (which Jonathan Coulton is not in this case) and if you are using someone else’s recording, the owner of that recording. It is presumed that the producers of Glee had the music recorded in a studio, but as the evidence here shows, it is highly likely that the producers of Glee sampled Jonathan Coulton’s arrangement of “Baby Got Back”. Since Jonathan Coulton is the owner of his recording of “Baby Got Back” (but not to the composition itself), if it is indeed true that Glee sampled Jonathan Coulton’s arrangement, then FOX could have legal problems on their hands.

  7. #20 by Ben Trube on January 25, 2013 - 12:07 pm

    I just want to say nice use of programming chops for getting an answer on this issue. I’ve never really liked Glee, or the way Fox operates, and it’s a shame to see them so shamelessly rip someone off like Mr. Coulton. Especially galling is the audacity in saying that Coulton should enjoy the new publicity even though he is never mentioned in the episode. I think Mr. Coulton’s doing just fine without your help, thanks Fox. Great post Music Machinery!

  8. #21 by Ben Bates (@Cryptision) on January 25, 2013 - 12:11 pm

    Python, the most geeky way to mix music. :) May I use this code in other projects? (minus the Joco song and Glee basterdization)

    • #22 by Paul on January 25, 2013 - 1:04 pm

      Ubetcha.

  9. #23 by Scott Simpson on January 25, 2013 - 12:14 pm

    Beyond the visceral “our guy got a raw deal” reaction, I’d like to hear what the Glee folks have to say about this. I’m guessing the people who get clearances are not in the “please may we if you don’t mind” business, but rather a “fill out this form and get it back by the end of the day” field.

    FWIW, my version of the song (linked) only copies the original version.

  10. #24 by Paul on January 25, 2013 - 1:17 pm

    The way music clearances work is that you’re required to clear specific rights (sync rights for use of the composition, with the writer/publisher, and master recording rights for the recording that’s used (which a show like GLEE doesn’t clear because they’re not using an existing recording, they’re creating their own recording). So the clearance person or lawyer doing the clearances is required to clear what he is legally required to clear: in this case, the sync rights – which the publisher/writer would’ve granted them (and which would include rights to any previously-existing derivative versions of the song, arrangements, modifications, lyric changes, etc made by cover versions). A music supervisor can’t approach someone to ask permission for something which that person (JC in this case) doesn’t own. There’s nothing there to ask permission for and there’s no right being granted and no contract being exchanged — because JC wouldn’t be granting them any rights, because he has no rights to grant. This changes if they used his actual audio recording, which I reallllly doubt they would do: the music team/legal team on GLEE is too savvy to do something like that, and there’s too much at stake. If they were to copy his lyric or use of duck quacks and recreate them themselves, they’d be allowed to do this per the sync license from the publisher, because his modifications to the original piece, or his altered lyrics, become the copyright of the publisher and the writer. Long story short, unfortunately JC doesn’t have any rights to grant, so no one can seek his permission & no one can pay him for anything. If he had created an original composition the story would be completely different and he would have rights to grant, but his is just a cover song. Again, it’s not a moral/immoral/doing-right-by-someone thing — a lawyer can only clear the rights that exist to be cleared. Bummer for JC though, I totally get it.

    • #25 by ironcurtainyc on January 25, 2013 - 1:28 pm

      This changes if they used his actual audio recording, which I reallllly doubt they would do: the music team/legal team on GLEE is too savvy to do something like that, and there’s too much at stake.

      You’re giving them too much credit. You may be right that the Glee Producers actually reproduced the arrangement in a studio, but considering how similar the instrumentals are, I doubt that. I’ll be generous to the Glee Producers and say that they made a mistake. However, just because they didn’t get a sync license to use the master track from Jonathan Coulton doesn’t mean that the Glee Producers didn’t sample it.

      • #26 by Paul on January 25, 2013 - 1:36 pm

        If they used samples of his audio recording, they’d definitely clear those: with the FOX legal team and a music supervisor like Neophonic being involved in this show, I can’t imagine anyone would ever let sampling of his master happen without prior clearance. If I had to guess, I’d say there was probably a pretty big meeting or conversation that happened before this use was approved just to make sure all bases were covered legally. When someone has deep pockets (FOX in this case), mistakes like “accidentally using his karaoke track” or “sampling pieces of his recording” just don’t happen. We won’t know for sure until/unless FOX actually says “we recorded it on our own entirely” — but it’s pretty unlikely. And the instrumentals are really easy to recreate: they’ve been doing it for 4 years now and they do it pretty well! I don’t have any skin in this game, but speaking as someone who works in Intellectual Property law, that’s how things break down from a practical perspective.

    • #27 by AlexNavasMusic on January 25, 2013 - 6:42 pm

      So would you say that the original melody he composed in his cover is not protected under copyright law? Of course the lyrics are belonging to the original songwriter but the melody is not part of the original songwriters, it is JCs. Shouldn’t he have rights to that melody and accompaniment? If this situation is true, then if I was to take a famous poem and get the rights to use it from the copyright holder, and write a song based on that poem, would anyone be able to use that song because it’s just an arrangement? No, JC wrote an original song with pre written text. As a songwriter that works for the church I have to do this all the time. I write settings of the psalms and the text belongs to the copyright holder of the text version of the bible I used but the music belongs to me.

      • #28 by Paul on January 25, 2013 - 8:37 pm

        Well, it wouldn’t matter what I say… I’m just explaining how licensing works. And the law is (and the mechanical license agreement that JC would have read, agreed to, and signed) says that anything you do to the song “Baby Got Back” – whether it’s changing a melody, adding or changing lyrics, or creating new melodies or harmonies or instrumental parts — anything at all that you add to it is a derivative work and becomes the property of the copyright owner: in this case, the publisher that owns that song. This isn’t new, it’s been like this since 1923. So if he created his own melody and accompaniment, it belongs to the “BGB” publisher now because he would’ve signed an agreement that says so. At the time he signed this agreement, he would’ve had to be OK with it because he agreed to it, then sold downloads of his song and paid the publisher the 9.1 cents per sale that he owed them.

        JC didn’t write an original song, he did a cover of an existing song. He signed a mechanical license agreement with Harry Fox stating that his version would ultimately belong to that publisher. Again, I don’t have skin in this game and I don’t really care about the outcome, I just happen to work in the world of music licensing and this is how it it works, that’s all.

        The psalms from the bible aren’t copyrighted because they’re in the public domain. They’re kinda old. So you can do anything you want with them. If you record a song that uses that text, you can then copyright the song you’ve created. Same with “Amazing Grace” or any other public domain song: you are creating a *copyrighted arrangement* of a public domain work. When you go to http://www.copyright.gov to file a copyright on your song that uses a psalm, you fill out the part where it says “does this include a previously-existing work or material” and “is that material in the public domain” – and then your copyright would actually be “Alex Navas’ arrangement of Psalm 23.” In this case, because the work JC was recording was already copyrighted, any new version of a copyrighted work automatically is considered a “derivative work” and that copyright then belongs to the copyright holder of the original work. Again, he would’ve signed an agreement to that effect with Harry Fox, so it’s not like it’s a surprise or anything. A great example: when Whitney recorded “I Will Always Love You” she had to get a mechanical license for it, and the money for each sale went to Dolly Parton (writer) and Dolly’s publisher. Whitney’s label owned that master recording. Their versions are very very different, but until the copyright on that song runs out, whether you sing it like Whitney (“I-eeee-yiiii eee-yiiiii will always love you”) or like Dolly, or whether you insert a duck quack into the song, or say “Johnny C” — you will have to obtain a mechanical license that pays Dolly and her publisher. Whitney had no stake in the song at all, except for her recording of it (which is the same case here with JC). If you re-record “I Will Always Love You” as a rap song and add your own new melodies and harmonies to it, when you obtain a mechanical license for the song it will say that the copyright to your version, lock stock and barrel, now belongs to Dolly Parton. Your recording of it belongs to you.

        It would totally suck to be the artist in this position, I get that — your “hook” – your thing that caused you viral success — just happened to be a cover song instead of an original composition. So rather than add on to the “JC got screwed” articles and blogs that are popping up everywhere, I just thought I’d inject some factual info about how all this stuff works. That’s all.

        Paul C.

  11. #29 by kif on January 25, 2013 - 2:41 pm

    Might be a dumb question… but is splitting an audio file by beat analysis something Python just has built-in? I’d heard Python would do a lot of things, but… wow.

    • #30 by Paul on January 25, 2013 - 2:42 pm

      No, it is not built into python. This program uses a library called Echo Nest remix to do the splitting and merging of the two audio streams.

  12. #31 by Brian Utterback on January 25, 2013 - 2:52 pm

    Okay, I was wrong about the license being mechanical instead of sync, but I still bet that Glee got whatever licenses they thought they needed. They may have been mistaken of course, or Coulton might be mistaken in the belief that he had to be involved. I just don’t think that they blatantly ignored the requirement to get a license for this one song after all the time it has been on the air.

  13. #32 by vagabondraiser on January 25, 2013 - 3:24 pm

    Regardless of whether they have the license, their response to Coulton– which was essentially, “we are legally allows to jack your shit, and you should be happy for the free publicity”– is a pretty heavy implication. I also recall one of the producers for Glee tweeting that “some people” wouldn’t know “opportunity” if it smacked them in the face, very shortly after this whole matter happened.

    Until they release an official statement on where they claim to get the audio from (and preferably, some manner of proof) it’s a lot of fingers pointing in their direction, but if your first reaction, rather than providing proof, is to clam up and mouth off at the accuser, you’re doing yourself no favors. I’d like to claim to be fair and unbiased, but I do have a hard time telling their entertainment and news branches apart. I find very little produced by either to be worth my attention.

  14. #33 by vagabondraiser on January 25, 2013 - 3:26 pm

    Regardless of whether they have the license, their response to Coulton– which was essentially, “we are legally allows to jack your shit, and you should be happy for the free publicity”– is a pretty heavy implication. I also recall one of the producers for Glee tweeting that “some people” wouldn’t know “opportunity” if it smacked them in the face, very shortly after this whole matter happened.

    Until they release an official statement on where they claim to get the audio from (and preferably, some manner of proof) it’s a lot of fingers pointing in their direction, but if your first reaction, rather than providing proof, is to clam up and mouth off at the accuser, you’re doing yourself no favors.

    I’d like to claim to be fair and unbiased, but I do have a hard time telling their entertainment and news branches apart. I find very little produced by either to be worth my attention.

  15. #34 by Paul on January 25, 2013 - 4:13 pm

    Strictly from a licensing perspective:

    Unfortunately, Coulton is mistaken in the belief that he had to be involved (unless they stole his actual audio recording, which is unlikely). When JC obtained the mechanical license from Harry Fox (which allows him to make and sell recordings of his cover of that song) he entered a license agreement that said he could sell his cover version as long as he paid x cents (statutory rate is 9.1 cents per unit sold) to the publisher of the song. I don’t want to sound like Debbie Downer or anti-JC or anything (honestly I had never heard of him till I read an article about this last week), but when JC got his mechanical license from Harry Fox, it would’ve stated — and he would’ve agreed to — the fact that his cover version (along with any alterations) would become the property of the publisher of the original song and would be classified as a derivative work. In some cases, the lyric changes/additions need to be approved by the publisher before HFA grants that mechanical license: some songs require it, some don’t. Some will say that gender changes are OK (like a female singer changing a “she” to a “he” in a song) – some will say that any lyric change/modification/addition/deletion needs to be approved first. But the license agreement that JC entered into with HFA that allowed him to sell the cover version of his song is the same one containing these terms that he would’ve agreed to, which include “your version becomes the property of (writer) and (publisher). So if GLEE got the sync rights through the publisher, they fulfilled their obligation because the publisher granting that permission owns JC’s cover version (except for the actual sound recording, which is his).

    So the fan outrage is understandable, totally — it sucks to see anyone get cheated out of some credit, especially an indie guy — but it sounds like everyone actually played by the rules here. I’m curious to see if JC posts FOX’s response, or a response from the music publisher who owns the song itself, which would probably confirm all of this… as would his license agreement for the original cover version that Harry Fox issued. If GLEE *did* use his actual recording and that somehow slipped through the clearance cracks? Well, there’s gonna be some $$ to pay! It’ll be interesting to see how this all plays out. I’m really curious to see the resolution.

    Paul C.

  16. #35 by Jim on January 25, 2013 - 4:52 pm

    Unfortunately, Coulton is mistaken in the belief that he had to be involved (unless they stole his actual audio recording, which is unlikely).

    Except listening to this its pretty likely they did, in which case he did have to be involved.

    • #36 by Paul on January 25, 2013 - 8:40 pm

      Or maybe they didn’t. It’s hard to believe that an entity like FOX – with all the lawyers and pro music supervisors that surround GLEE – would’ve stolen his actual audio, because everyone in that food chain would know just how much $$ would be at stake if they did. Liability is huge at that level, and I’m sure they’re all aware of it.

      At any rate, I’m curious to see how Fox responds. Hopefully JC will post a summary or some of the correspondence as this continues to unfold.

      Paul C.

  17. #37 by ironcurtainyc on January 25, 2013 - 9:00 pm

    Paul (That is, Paul C. the IP lawyer, not Paul Lamere the Python coder): Check this out:

    http://www.wired.com/underwire/2013/01/jonathan-coulton-glee-song/

    Here are money quotes from Jonathan Coulton himself:

    It’s a little frustrating. Whether or not they’re in the right legally, it doesn’t seem like the best way to handle it. If you’re going to claim that you’re giving an artist exposure and they should be grateful — there’s a right way to do that. Contact them ahead of time. Say this is great, we’re going to talk about it on our blog and tell all our fans that they should be fans of yours. We’re going to put a credit in the show. That doesn’t cost them anything. It’s a show with something like a $3.5 million budget for each episode, but there are still so many free things they could have done to engender goodwill.

    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.

    I’ve thought a lot about what satisfaction I can possibly get out of this situation and I’m not sure yet what the answer is[…]I’m still looking into what I consider to be a very real possibility that they used the audio tracks… That would be a pretty cut and dry violation. You can’t just use somebody’s audio without their permission. If they did, there’s not much question that they’re violated my copyright, as I understand the law. There’s still a chapter yet to come.

    [Making Note-for-note reproductions of new arrangements] does seems [sic] to be kind of a pattern, It doesn’t seem like it could possibly be a mistake you would make if you had that legal team… They decided it was a legal risk they feel comfortable taking.

    The most frustrating thing is the completely silent nature of their approach to this ‘exposure bonus’ for me. The thing I would wish for most is a frank and open and public discussion with them about what they have done, what they believe they have done and what their actual policy is on this kind of thing. And I don’t know if I’m going to get that

    So it seems that he’s more interested in credit than any financial reward. Like you and I, he knows that the compulsory license he paid means that Fox can legally reproduce his arrangement (if that’s what they did). As for the perceived violation of his master rights, as Coulton has said, that’s a chapter that is yet to be written. We don’t know yet, but the burden of proof is on JoCo. If he can prove that Fox sampled his recording, that is indeed a legal © issue. Otherwise, he’s got nothing.

  18. #38 by Paul on January 25, 2013 - 9:06 pm

    I totally get it, that some kind of credit to JC would’ve been neat and appreciated. But from a purely legal and licensing standpoint, I don’t think FOX *CAN* credit him, because he doesn’t own the song. They also can’t pay him or ask for his permission, because he doesn’t own anything to grant permission *for* — know what I mean?

    Perhaps a nice resolution here would be for Sir Mix-a-Lot’s publisher to split all of their earnings for this license and for the iTunes downloads with JC. Cuz it sounds like they owe this license to him and his cover version. Bt you know what? I bet they won’t: I bet they’d side with GLEE.

    Paul C.

    • #39 by Brian UtterlyWrong on January 26, 2013 - 10:31 am

      How ’bout this: “Special Thanks – Jonathan Coulton.”

      Paul, I’m not sure why you’re so absolutely, positively sure that FOX wouldn’t goof up on something like this. Spotting mistakes FOX makes is considered a sport in some parts of the internet. (But it’s too easy, so I don’t compete.)

      Do you know what musicians get paid for a full hour of original music on a prime-time drama? Do you know what the licensing fee is for a reasonably well-known song in the credits of a TV comedy? The money is TINY. $5k for an hour of original music. $500 for a song. Maybe more, but probably not. The money is in film, but even there the downward trend is evident.

      Maybe, just maybe some schmuck sitting in front of buggy music software on a deadline decided to cut corners. Heck, maybe s/he’s even a Coulton fan and utterly horrified how it played out. Coulton previously published karaoke versions (no vocals) AND the raw tracks. Forensic analysis shows where they edited out the duck from the original tracks.

      To me the telling bit of information is that 1) this has happened many times before with Glee and 2) FOX isn’t talking. They thought they could get away with it. They misjudged.

      • #40 by Paul on January 26, 2013 - 3:08 pm

        Like I said: it’s possible that someone at FOX screwed up, but unlikely. I’m not disagreeing with you. The fact is that until we see the documentation from JC or FOX or some admission of guilt, it is what it is. *I have no skin in this game* – I just thought it would be wise to shed some light on how licensing works, since most articles about this subject haven’t contained any of this information: they’ve basically just been people saying “this sucks.” Which I totally get. From FOX’s point of view, if they did everything by the rules, they don’t have anything to say ergo no need to talk or issue statements beyond what they’ve already said. From JC’s point of view, if he know that they stole his audio – or at least suspects this – then I’m sure his lawyers will be filing a claim if they haven’t already. And hopefully JC will be transparent and share documentation about this whole thing when it’s done, because it’s kind of fascinating from a legal perspective.

  19. #41 by xxbrittanyxbryarxx on January 26, 2013 - 2:07 am

    Okay, so it’s really messed up. And irritating. But the first music one, yeah. It’s the combining of my new favorite. Every other beat is totally a bass accent, it sounds so cool. the only thing that could make it better is if JoCo was talking throughh the singing at the end. Haha, they should colab. (:

  20. #42 by Angry Voter on January 26, 2013 - 2:38 am

    So this means I can use all the Glee music for free on my website now right?

  21. #43 by tunesmith on January 26, 2013 - 4:12 am

    Paul, is it possible to use echonest to determine with any confidence if the backing tracks (guitar etc) are identical? It’s obvious the vocals are different, but a lot of people are thinking that Fox used the same instrumental track – even to the point of clumsily muting out the duck quack.

  22. #44 by Paul on January 26, 2013 - 3:11 pm

    So wouldn’t a great resolve here be that Sir Mixalot’s publisher donate 50% of all of these royalties to JC as a make-good? Since it’s basically his version of the song that they licensed to GLEE, and it’s his version of the song that they recorded. Seems only right.

    (but they won’t, because legally they don’t owe him anything)

  23. #45 by Paul on January 26, 2013 - 3:25 pm

    For anyone who is interested in the gears and wheels of mechanical licensing, this is usually the very first paragraph in every mechanical license agreement & is probably contained word-for-word in JC’s agreement for Baby got Back. It’d be great if he would post a copy of his mechanical license, actually…

    1. In connection with your exercise of the right and license granted herein, you shall have the right to make a musical arrangement of the Composition(s) to the extent necessary to conform the Compositions to the style or manner of interpretation of the performance and/or publication involved, provided however, that any such arrangement shall not change the basic melody or the fundamental character of the Composition(s). You hereby transfer and assign to Publisher(s) all rights, title, and interest in and to any such arrangement.

    Paul C.

    • #46 by tunesmith on January 26, 2013 - 3:32 pm

      But, he *did* change the basic melody.

      I’m guessing the implication here is that in those cases, the license is not necessarily granted in a compulsory manner, and Coulton would have needed explicit permission. And if he didn’t have explicit permission, he shouldn’t have arranged it that way. And if he did anyway, he either infringes on BGB’s publisher, or they consider it a compulsory license anyway, in which case the final sentence you posted still applies.

      The other route Coulton could have gone would have been to call it a parody. And in that case, he could have copyrighted the melody, right? Although I don’t think putting a pretty melody on a rap song would be enough for it to clear the “parody” bar. Plus, I think it might be too late to claim it is a parody *now*.

      • #47 by tunesmith on January 26, 2013 - 3:35 pm

        Yeah – I just saw Coulton’s latest update, it’s clear he got a mechanical license from HFA in 2005, so the fact that the paragraph above has that clause about “not altering the melody” is moot.

      • #48 by Paul on January 26, 2013 - 3:43 pm

        Like I mentioned in an earlier post: if you are making changes to the song (changing lyrics, gender changes like he/she, making harmonies, new melodies, etc) sometimes those changes must be pre approved by the publisher, who may or may not need to seek the approval of the songwriter for those changes before agreeing to the license. It depends on the songwriter’s agreement with the publisher. A mechanical license is compulsory for any song if recorded as originally written, but changing the original song nullifies the “compulsory” part. So if he made changes, he either needed to get those approved or he didn’t, based on the publisher’s requirement (the publisher who issues a mech license via Harry Fox with HFA basically just brokering the deal and issuing the paperwork).

        Also, this language is NOT from a Harry Fox contract, nor is it from JC’s contract — it’s just the standard, typical, regular, everyday 1st paragraph in most mechanical license agreements. I’m guessing it’s also the first paragraph in JC’s Harry Fox license for “Baby Got Back” – but like I said, I have no idea, I’m not involved, I have no knowledge of the specifics here — I’m just shedding light on the extremely-arcane world of music licensing.

        Re: parody, “parody” doesn’t mean (in licensing world) “making fun of something.” It means something more along the lines of “creating social commentary etc etc” about the original work. Weird Al actually gets mech licenses for his versions of songs, where the altered lyrics (like in “Eat It”) are approved by the publisher. In these cases, the publisher owns 100% of the copyright to Al’s songs, but he owns the master recordings. That’s the same thing as what would’ve happened with JC.

        And yes, once you’ve obtained a license, made money on it, paid the licensing fees — you can’t suddenly call it parody. True.

        Paul C.

  24. #49 by Matt Kane on January 31, 2013 - 9:39 am

    I wonder how much Juan Atkins gets paid out of this His ‘Technicolor’ is sampled in the original.

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