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Copy That: Did “Glee” Pilfer Jonathan Coulton’s “Baby Got Back”?

jonathancoultongleebackPOSTThere are your garden variety deja vu moments, and then there are the You. Have. Got. To. Be. Kidding. Me. moments when you experience something and it seems too familiar, blatantly familiar.

So, Glee did a folky cover of the Sir Mix-a-Lot classic “Baby Got Back,” and anyone familiar with Jonathan Coulton immediately had a You. Have. Got. To. Be. Kidding. Me. moment.

Here’s Jonathan’s version, released in 2005 as part of his Thing a Week project, posted October 15th, 2005 with a blurb on Boing Boing the next day:

And for good measure, a live version with Paul and Storm as, pardon the expression, backing vocals:

Here’s the Glee version, from this season:

Play them back-to-back and see what you think. Keep in mind that Jonathan’s version featured his own melody along with Sir Mix-a-Lot’s lyrics, and when you listen to the Glee version, that melody is… well, you compare and see. (And there’s the “Jonny C” reference near the end that magically ended up in the Glee version. Hmm. Double hmm.) Now, neither Jonathan nor Glee wrote the original “Baby Got Back,” but the melody on Jonathan’s version is his, and the melody for Glee‘s version seems to be, um, Jonathan’s, so, well, I’m not going to trot out my law degree and reactivate my bar membership for this post, but you be the judge. Jonathan’s already tweeted his opinion, and, yeah, if I were him, I’d feel ripped off, too.

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79 comments

  • Never-mind, that YouTube doubler site was really convincing. If it is a sound-alike, those engineers would have had to go crazy matching the tones of all the instruments like that. Holy crap.

    Damn. JC’s got a settlement check coming his way.

  • Yeah, Glee has done this a lot before, leading people to believe that they came up with new arrangements of songs that they took from covers and acoustic versions. Most notably “Over the Rainbow” and “Shake it Out.”

  • So, I guess I’m back to, “How many people at the production company would have to be just absolutely awful at their jobs to let something like this through?”

    The answer, apparently, is enough.

  • Glee has also been accused of using choreography without credit, when they covered the Scissor Sisters song “Let’s Have a Kiki.” The choreographer felt he deserved credit, since they used so much of his original material, but Glee claimed fair use.

  • I’m pretty sure just being on the show, which is a commercial product, would have violated anyway, right? Maybe they found out it was a CC/Copyleft license and didn’t do the research to find they couldn’t use it? It just still blows my mind that they’d be dumb enough to do this. They must figure the cost of litigating for him (or anyone else they may or may not steal from) is too much to make it worth it.

  • I know Wikipedia isn’t exactly a cite-able source, but the Glee songs wiki lists Laswell and Vague for “Girls just wanna have fun” and “dancing with myself” respectively. Were they never properly credited?

  • It’s pretty clear: the original lyrics aren’t Jonathan’s, but everything else in the Glee version (melody, instrumental backing track, unique alterations to the lyrics) are his. And while he published the track under a Creative Commons license (which, IMHO, gives away too many rights), he did use a version of the license that requires attribution and allows only non-commercial use. Fox infringed.

  • Question: if the song hasn’t been officially released or used, what’s the basis for the claim of no attribution? Some 16-year-old kid got access to the sound file and spoiled it on YouTube. Those videos never give attribution to anyone.

    • I saw other commenters mentioning that it is already available on iTunes in other regions. Also, because of the terms of the CC license JoCo uses for his work, they would have needed to contact him well in advance to pay for using his song if they’re just about to air the episode that features the song.

  • @Drew: “Has anyone purchased the track on iTunes to see if he’s credited in the metadata?”

    His license clearly states non-commercial use only, and since they did not get his explicit permission to use the song in the show or sell it on iTunes this is irrelevant. They took his song, seemingly mixed in their own vocals straight over his karaoke track, and started selling this “new” version, which is also supposed to be aired on TV.

  • This is super shitty, but a tiny part of me is proud that Coulton is in a position to be ripped off, if that makes any sense. He deserves more attention, just not like this.

    Didn’t really need another reason not to like Glee, though.

  • Jonathan himself pointed out that his CC license may not apply in this instance. The legality of this is pretty fuzzy as it’s already a cover. Are you a copyright lawyer?

    Also, there’s pretty much no proof that Glee is actually using his audio track. If they are, that’s reprehensible, but I want to make things clear: the only thing we can actually be sure of at this point is that Glee covered Jonathan’s cover without notifying him.

  • Drew, credit in the metadata would be a start, but hiding credit in a place that most users wouldn’t know to look does little the mend the damage. It’s a Non-Commercial CC license, anyway, so even with credit they are not legally allowed to use it in a commercial product.

  • Guys, Jonathan himself said that Creative Commons doesn’t apply because it’s a cover song. Crediting people in the “composer” tag of a sound file isn’t “hiding” it and it isn’t about “mending the damage,” it’s about providing proper attribution.

    I’m going to leave this here: http://www.oregonlive.com/movies/index.ssf/2011/05/did_glee_steal_a_university_of.html

    Regarding a previous cover “arrangement” used by Glee. Seems like it’s possible for Jonathan to get credit if he wants it.

  • Would the audio track actually be considered a cover? It’s after all a unique arrangement, it’s only the lyrics which are obviously a copy of Sir Mix-A-Lot’s original.
    The audio track might therefore be considered covered by copyright.

  • Fellow ex-lawyer, perhaps you know better than me: Do covers/new arrangements fall under compulsory license? Since the melody is original to JoCo and therefore his copyright, at the very least he should get paid for that. To Harry Fox!

  • If the CC license doesn’t apply, it doesn’t suddenly become free to use, it just becomes *harder* to use — standard copyright still applies as if he had not licensed it at all.

    IANAL, but the only ways I can see this not being copyright infringement are: (1) JoCo gave permission but doesn’t recall (it happened to @zoecello recently!), (2) Fox got a compulsory license and JoCo wasn’t notified or doesn’t recall being notified, (3) Fox is confident that they could consider apparently using his whole Karaoke track as fair use, or (4) JoCo’s arrangement with Sir Mix-a-lot actually transferred either sublicensing rights or full copyright ownership of JoCo’s arrangement to Sir Mix-a-lot and Glee went through them as well.

  • I am a lawyer, but this is not legal advice.

    Here’s the statute about compulsory licenses:

    “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 of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.”

    In other words, JoCo probably has no copyright over his own arrangement, even the unique parts, unless he got express consent from Sir Mix-a-Lot (or whoever owns his song). Since he went through Harry Fox, it sounds like he did not.

  • It doesn’t matter if Mix-A-Lot gave Glee permission, Coulton wrote an original melody and included a personalized lyric with his name. He owns the rights to his version of the song. Coulton had to pay a licensing fee to Mix-A-Lot to use his lyrics, just like Glee did. Glee has to now pay boatloads to Coulton and hope there’s not a lawsuit.

    I for one hope there is.

  • @H: Actually that’s pretty interesting. I’m somewhat surprised that there’d be no protection of the derivative work under that. Any comment about whether that lack of protection extends to the recording JoCo made or just the score? I’d guess both, but I guess it could be different.

    So I probably have to retract what I said before… or more specifically, add an option (5) JoCo got a compulsory license to arrange Baby Got Back in the first place and did not explicitly get copyright protection for his changes. And I’d guess that’s pretty likely…

  • JoCo doesn’t need any kind of official copyright protection. His material exists and is shared in public. He owns that melody.

    Also, there are already precedence for this type of conflict based around works of parody.

  • Did Glee get a synchronization license (which is not compulsory and can’t be obtained from Harry Fox) to use Jonathan’s melody and backing track in an audiovisual production? If not, it needs to.

  • I get that there may be legal nerds out there, but really, if everybody just reposts this all over the place, it’ll do WAY more than any suit could ever do. It would shame them into making an apology… and if they don’t, we can all just repost that, and they’ll look even worse.

    Shame is my ally… and a powerful ally it is.

  • I’m not big on the legal business of all this. However, I’m pretty sure this isn’t the first time Glee jacked someone’s arrangement on a cover. I believe they did it to another artist in their S3 cover of “Girls Just Wanna Have Fun”. I heard the artist who did the arrangement was also upset over Glee’s blatant pilfering.

  • Glee supposedly contacted Sir Mix-A-Lot to arrange for the use of his original song. They knew they had to do that. Then, they used the version (Coulton’s) they preferred, recorded it, and released it on YouTube to promote their rather profitable television program. I have heard they also put it up on i-tunes for a buck a throw and have since taken it down. Sir Mix-A-Lot wrote and owns the original song, but doesn’t Jonathan Coulton own his distinct arrangement of that song? It does seem, as Perry Michael Simon states, that if they really wanted to do the right thing by Coulton, they would have taken the time to change the arrangement or instrumentation of the song and at least yelled another man’s name during that pivotal moment so at least one guy didn’t feel so screwed. At least they could have sent flowers.

  • they You can actually play them on top of each other for the first few minutes of the song; they didn’t even change the tempo, and if you turn up the Coulton one and turn down the glee one, it’s like he has his own personal backup choir. It would be cool if it weren’t such blatant thievery…

  • As Hon pointed out, unless JoCo got express consent from Sir Mix A Lot when he was doing his cover version of it, all rights to the song, including JoCo’s arrangement, are in Sir Mix A Lot’s hands.

    In which case, JoCo may want to remove that tweet, as if FOX decided to pursue it, could result in jailtime if FOX could prove his tweet resulted in lost itunes sales from the lible he essentially posted.

    Now, if he did get express consent, then FOX will need to do something. However, again, as Hon pointed out, JoCo went through Harry Fox, not Sir Mix A Lot, which makes that very doubtful.

  • Also, to the people saying this happened before with Girls Just Want To Have Fun, no it didn’t.

    FANS were the ones who assigned it the Cyndi Lauper label, not FOX. They simply released it as Girls Just Want to Have Fun, with the artist listed as the original artist. Fans quickly stated it was the Cyndi Lauper version.

    That has sense been realized as wrong. :P

  • Ahim, I think the argument could be made that “ripped off” wasn’t used in a legal sense so much as an artistic sense. The least one could do concerning using the cover of a current pop musician would be to would be to contact that person for using it. Let him or her know “hey, we’re going to cover your cover on this upcoming episode so you can watch it. Also it’ll be on iTunes.”

    Even if Fox has the legal right to use the cover, it’s not as if it’s good manners to *only* contact the original song’s copyright holder and ignore the person whose actual artistic arrangement is going to be used.

    And if JoCo just “doesn’t recall” giving permission (assuming he would have needed to), Fox should provide proof. There should be an email or something to confirm this somewhere.

  • I’m not saying I agree with what FOX did. But the fact remains people are jumping on board saying he needs to sue them.

    Chances are, they had the legal right.

    And if it goes along the way of Usher’s Yeah! they will give credit to him. (They had taken the arrangement from a non-official [and technically illegal] cover a girl acapella group had done) However, if I were them, I’d say hell no because of his PUBLIC reaction, BEFORE talking to them.

  • @Ahim: So was JoCo’s PUBLIC reaction anything like the PUBLC way in which they ripped off his recording? Why didn’t they have the decency to talk to HIM before using his audio? And I don’t know what business you’re in but it’s clearly not entertainment. Who exactly do you think he should have picked up the phone and called? Ryan Murphy? The president of FOX? Here’s how that call goes:

    “Hello, FOX operator? I’d like to speak to your producers of Glee because I think they used a recording of mine in your show. Hello? Hello???”

    And yes, he did obtain a license to cover the song. And yes, the bigger issue is that it seems fairly clear that they just used his recording rather than making a new one–WAY not okay. Her’es a whole thread on reddit where audio engineers did side by side comparisons on the tracks and found the wave forms to be IDENTICAL: http://www.reddit.com/r/Music/comments/16trp4/glee_shamelessly_rips_off_jonathan_coultons_baby/

    Yesterday, they were SELLING the song on iTunes, but it has since been pulled. That’s a pretty big tell that they know they fucked up. It’s still on iTunes Sweden, however: https://itunes.apple.com/se/album/baby-got-back-glee-cast-version/id592420108
    So they are profiting from Jonathan’s actual work without any credit or compensation. Even if you could argue that he has no claim because his completely original melody was a derivative work, you can’t argue that they can use his actual recording.

    And the even bigger issue is that this is an instance of a large company (one that makes a LOT of money from its show and owes its audience original work) basically just took something because they figured “Eh, it’s just some Internet guy. What’s really gonna happen??”

    hey Mencia-ed him. Comedians can’t sue each other for joke stealing, but they should damn well be shamed for doing it. The artist or company is essentially profiting from someone else’s idea without crediting or sharing that with its inventor. FOX/Glee are going to make shit tons of money on the episode that song airs in and in the selling of it on iTunes, and it was both an idea and an audio recording that didn’t belong to them. Their writers get paid to WRITE, not STEAL from people who are not. What they did was 100% wrong and they absolutely deserve to be publicly shamed.

  • ^ This.

    Ha, I mean, of course, because it’s Chris… there are tons of people who just “^ this” ‘d in their minds.

    But to actually add something… Ahim, maybe temper your supposed depth of legal knowledge with a bit o’ common sense, bruv. If you even bring up the remote possibility that Jonathan Coulton could get jail time for lible over this, then you’re failing to factor in the real-world application of the law, which is oftentimes rather different than the established legal text.

    And regardless, let’s not let business/law/fine-print eclipse basic values of creative decency. We, as a mass audience, are the only ones in a position to actually bind these entities to any sort of honest operation. Even if Fox had a legal leg (…leg-al?) to stand on, there’s no need for the little guy to stand up for the legal rights of Fox. They have storage closets full of lawyers who can do that plenty well.

  • (that was me saying I was actually adding something, instead of just saying “this”… Not me saying that Chris wasn’t adding something not something. Sorry, I think the English language just died.)

  • Let’s step to the left of all the legal nonsense and look at human decency for a sec:

    This was a dick move. Lazy “composer” for Glee is lazy. Thought he could pull a fast one and have people think how clever he is. Got caught. He’s a dick. JoCo is awesome.

    /scene

  • Whether it’s illegal or not isn’t the major point I think Coulton is trying to make. Even if he has no legal rights, he still deserves credit and to be informed of what was happening. And if it is a direct copy (as it certainly sounds to be) than this is a really terrible move on their part.

    The good news is that, no matter what happens, Fox still gets some deserved bad press for it, and maybe JoCo will get some new listeners.