Jonathan Coulton Vs. FOX

This story is about 2 weeks old now, so that means it’s time for me to weigh in.

As I was reading my Twitter feed back on Jan 25, I came across this tweet from my buddies @Simpsonology:

I hadn’t heard what the brouhaha was all about, so I read the article. If you haven’t read the article (or don’t care to), the gist is that in 2005 Mr. Coulton produced and performed a “cover” of Sir-Mix-a-Lot’s big hit “Baby Got Back” which the FOX show GLEE apparently used in a recent episode without seeking Mr. Coulton’s permission or paying him any royalties (I am confident that FOX did obtain the proper licenses and paid the appropriate fees to Sir-Mix-a-Lot). A “cover” is a different version of a song than the one produced and recorded by the original artist. So the question is, is FOX (or GLEE) in violation of any copyright laws and do they owe Mr. Coulton anything (e.g., money, credit, an apology)?

Before you read any further, remember that I am NOT an attorney specializing in music or any kind of intellectual property rights. You are NOT authorized to go into court and say, “Chris Ledesma said I could!” I am just a humble music editor who has been around these issues for the past 25+ years and have learned a great deal just by keeping my ears open and my mouth shut.

The cut-to-the-chase answer to the above question is “no”. Of course it goes deeper than that, but basically, “no”. Mr. Coulton’s version of “Baby Got Back” cannot be protected by copyright because Sir-Mix-a-Lot holds the original copyright of the work. “Cover” versions of songs currently under copyright may not be copyrighted. U.S. copyright law allows Mr. Coulton to record his own “cover” version without permission but he must pay a royalty to Sir-Mix-a-Lot. If “Baby Got Back” had been written over 100 years ago and had fallen into the public domain, then Mr. Coulton would be allowed to copyright his “cover” version. He could not claim authorship of the work, but he can be credited as the creator and copyright holder of the “cover” version or arrangement. I deal with this issue multiple times each year when working on THE SIMPSONS. For example, any time we do a public domain piece of music by, say, Beethoven, or Mozart, or Scott Joplin, when we record our own version for use in the show, Alf Clausen receives credit as an arranger and FOX owns the version and its recording (version is the intellectual property, recording is the physical recording on disc, tape or digital media) and copyrights both. Then both Alf and FOX receive royalties from ASCAP whenever that episode plays on TV. If we record a “cover” of a copyrighted work (e.g., “Theme from ‘Bonanza'”, or “O Fortuna”, or “Rhapsody in Blue”) then FOX must obtain permission to use the work, pay a license fee to use the work, and neither FOX nor Alf will receive any royalty for the work. To add a layer of complexity, FOX does own the recording of the “cover”. The recording is protected by the overall copyright of the episode. This means that no one may use our recording of the “cover”, but if someone wants to record their own version, it can be the same as the FOX “cover” because the arrangement cannot be copyrighted. Whew! Are you still with me?

You might ask, “Why can FOX copyright their “cover” and Jonathan Coulton can’t copyright his?” Because FOX’s copyright is actually of all the content – the character design , the script, the music, and all the sound recordings, etc. – in an episode. FOX cannot claim authorship of a piece of music in a SIMPSONS episode if that piece is already protected by someone else’s copyright, but FOX owns and copyrights all recordings made for the show. Now, this does give Mr. Coulton one small possibility for damages. The article suggests that FOX may have used Mr. Coulton’s recording in the GLEE episode. That’s a no-no. Mr. Coulton has the right to copyright his recording of “Baby Got Back”. If he were to sell this recording, he would receive all proceeds from the recording, but still pay a royalty to Sir-Mix-a-Lot. If GLEE re-created Mr. Coulton’s version by making their own recording (just like we do often on THE SIMPSONS), then Mr. Coulton is out of luck. But if GLEE used Mr. Coulton’s recording without permission they would be in violation of the copyright of the recording. Audio forensics are being performed on the soundtrack of the GLEE episode to try and figure out what’s what. I’ll be following the story to see what the final outcome is.

Thoughts?

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14 thoughts on “Jonathan Coulton Vs. FOX

  1. And what happens when you hire and record Sir Mix-a-Lot to sing a parody of his own song, but with lyrics written by the Simpsons staff? Who owns what then?

    • Ah, the complexities never end.

      OK, if we hired Sir-Mix-A-lot to come in and sing a parody version of a song he owns and copyrighted, the first issue would be: Do we record our own “cover” of the instrumental portion of the track or does he bring his own “master” of the original to sing to? If we do a “cover” then FOX owns the recording of the cover, but does not own any part of the original song and in either case will not receive any royalties from its performance. If we use the original “master” then FOX pays a “mechanical” license fee to use said “master”. In both cases, FOX must pay a “sync” fee to use the song regardless of whether he sings to the “cover” or the “master” – this is separate from the “mechanical” fee – and the parody lyrics are a non-issue because parody lyrics cannot be copyrighted if applied to a song currently under copyright.

      You can copyright lyrics applied to a song in the public domain. This is precisely how the Hill sisters copyrighted “Happy Birthday”. Many people don’t know that the lyrics are under copyright, not the tune. The tune is a public domain work entitled “Good Morning to All”.

      Keep the questions coming!

  2. This is a tricky one……Coulton technically recorded a ‘cover’ of Baby Got Back, but considering its a rap song with no real melodic/harmonic structure, couldn’t an argument be made that at least some of his cover is actually a new work? Other than the lyrics, there’s absolutely nothing about it that has any direct correlation to the original song. At what point does a cover cease to be a cover? Strip away the lyrics and no musicologist in his right mind would ever accuse that recording of being Baby Got Back.

    • You have touched on one of the prickly points in music clearance that has perplexed me for many years. I have always believed that when an instrumental version of a song is preformed in a movie or TV show, BOTH the composer and lyricist should receive credit on the cue sheet. Some composers disagree but my position is that the lyrics inform the melody. The rhythm, the emphasis of certain syllables on certain beats, the rise and fall of the melodic line are all dependent on the lyrics. Thus, why shouldn’t the lyricist receive cue sheet credit even if the lyrics aren’t sung?

      So, even though Coulton may have created a melody that was heretofore non-existent, his construction of that melody was totally dependent on the existing lyrics which are copyrighted. The best Coulton could ever hope for is a co-composer credit on his cover version only, but that would have to be approved by Sir-Mix-a-Lot.

      Great comment! Thanks.

      • To make things more complicated, the article actually does mention that he wrote some new lyrics, which Glee used.

      • I read that, too.

        (Opinion Alert!) It’s quite possible that Coulton dreamt up his version as a parody. I mean, the style of the arrangement is diametrically opposed to rap. Parody lyrics cannot be copyrighted when applied to a copyrighted song.

  3. Imagine what the folks in Fox’s clearance department of the 1940s would’ve said if you told them they needed to obtain a clearance from someone named “Sir-Mix-a-Lot”…. You’d need that cartoony sound effect used when someone shakes their head violently in an incredulous manner.

  4. Thanks, Chris. That was a clear explanation of a complicated subject. Sam is a Coulton fan and Jenn & I watch Glee. I wasn’t sure who to root for…

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