Glee , the popular teen musical, once again has found itself at the center of controversy.  On Thursday, 01/24/13, the show aired a dramatically different version of Sir-Mix-A-Lot’s hit “Baby Got Back”.  This version, unlike the straight rap Sir-Mix-A-Lot original, is a banjo-infused, acoustified country jam.  One may think the powers-to-be at Glee (Fox Broadcasting Company) creatively came up with this version, however, musician Jonathan Coulton is claiming Glee used his version of the song without crediting him.  The versions are staggeringly similar and the videos to each version are embedded below for your listening pleasure.  (This is not the first allegation against Glee.  Previously, Glee was accused of covering Greg Laswell’s “Girls Just Want to Have Fun” arrangement without issuing credit.)  The question is, if Glee did use Coulton’s cover, did it engage in copyright infringement?

It’s important to note that Coulton’s work is not an original work but actually a cover of a copyrighted work.  Section 106 of the Copyright Act provides that the owner of a copyright has the exclusive rights to reproduce the copyrighted work in copies, prepare derivative works, distribute copies to the public, perform the work display the work and in the case of sound records, and perform the work publicly by means of digital audio transmission.  To distribute a recording of someone else’s copyrighted work, a compulsory license must be obtained or there’s a risk of copyright infringement.

As Coulton’s work is a cover of “Baby Got Back” he needed to obtain a license that would allow him to legally release his version.  Coulton asserts he purchased the statutory license necessary to distribute his version of the song.   Section 115 of the Copyright Act provides for a compulsory license to make and distribute records of a work under the authority of the copyright owner.  A compulsory license includes the ability to make a musical arrangement of the work to the “extent necessary to confirm it to the style or manner of interpretation of the performance involved.”  However, 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…except with the express consent of the copyright owner.”

This provision prohibits the licensee from claiming an independent copyright in the arrangement as a “derivative work” without the express consent of the copyright owner.  Unfortunately, as Coulton released his dramatically different version of “Baby Got Back” under a compulsory license, he has not secured a copyright in his arrangement.

However, if Coulton had obtained the permission to create a derivative work then he would have been able to secure a copyright in his new arrangement.  If a cover alters the original song in a significant way, it may qualify as a derivative work but derivative works are not covered under a compulsory license.  Under §101 of the Copyright Act,  a derivative work “is a work based upon one or more preexisting works, such as a…musical arrangement…in which a work may be recast, transformed, or adapted.  A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a derivative work. “

If Coulton had obtained the necessary permission from the copyright holder to make a derivative work, he would likely have a legitimate copyright claim against Fox.  However, with only a compulsory license, Coulton has no copyright in his musical arrangement and no legal basis to pursue a copyright infringement claim.

What’s interesting is there is a possibility his version of “Baby Got Back” could be viewed as a derivative work and not merely a cover, protected under the compulsory license.  In fact, if Coulton’s version is considered a derivative work, which has changed the “basic melody” or “fundamental character” of “Baby Got Back” then ironically he would have infringed the copyright by creating a derivative work without permission.  (Note an exception exists for Fair Use).

Now, Coulton is speculating Glee may have “used some or all” of his original audio.  If that were the case, then he may have a legitimate copyright claim.  However, it is highly unlikely that Fox would have been ignorant enough to actually sample Coulton’s audio track.   Until Mr. Coulton can prove that Glee sampled some (or all) of his original recording, he will unfortunately be out of luck.  An identical sound recording of his arrangement would not infringe.

Although Fox likely did not do anything illegal, it stands to question whether their use of his arrangement (although unlikely the actual recording) without providing credit is ethical or morally right.  Glee will be profiting from Coulton’s version without any acknowledgment of Coulton’s creativity.  Perhaps the right thing to do in this situation would be for Fox to issue a press release acknowledging Coulton’s arrangement.  Although Fox is within its rights and Coulton has no copyright protection in his arrangement, Coulton deserves to be credited.  It might even bring some positive press Fox/Glee’s way.  Although Fox/Glee is receiving a fair amount of negative publicity right now, isn’t it the saying that “all publicity is good publicity.”  Unfortunately, I strongly doubt Fox will issue a statement apologizing to Coulton or acknowledging Coulton’s arrangement.

However, on the bright side, Coulton, despite Glee’s failure to actually acknowledge him by name, is receiving a great deal of positive publicity.  Many news outlets have picked up on the story, including most recently CNN.  My guess is, despite the lack of formal recognition, Coulton, may gain additional fans and receive an uptick in his music sales.  In fact, my own sister, who had never heard of Jonathon Coulton, has now purchased his version of “Baby Got Back” on itunes.  Additionally, other bands and celebrities have come out in support of Coulton, including: Chris Hardwick (host of “The Nerdist”), author John Green (“Looking for Alaska”, “The Fault in Our Stars”), and the band “They Might Be Giants”.  Maybe this will make up for the slight he feels.  Then again, maybe not.  Coulton posted on his blog that representatives of Fox were in touch “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).”

In response to Fox’s continued failure to provide a public acknowledgment, on 1/26/13, Coulton, released “Baby Got Back (In The Style of Glee)”,  stating “[i]t’s a cover of Glee’s cover of my cover of Sir Mix-a-Lot’s song, which is to say it’s EXACTLY THE SAME as my original version.”  Coulton has also pledged to donate the proceeds from all sales, between now and the end of February to The VHI Save the Music Foundation and The It Gets Better Project.  The song is available on itunes, Amazon and Googleplay.  It might provide some satisfaction that the Glee version of “Baby Got Back” is no longer ranked on the itunes top 200, while Coulton’s “new” “Baby Got Back (In The Style of Glee)” is sitting at #154.

Coulton’s Version

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Glee’s Version

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